E-Verify Extended Again Without Changes, to Employers’ Dismay
Employers Left With No Way to Verify Current Employees’ Eligibility, Unless a Government Contractor or Subcontractor

By Clyde H. Jacob III, Director
Coats Rose - New Orleans

E-Verify is an Internet-based system that allows an employer, using information reported on an employee's Form I-9, Employment Eligibility Verification, to determine the eligibility of that employee to work in the United States. For most employers, the use of E-Verify is voluntary and limited to determining the employment eligibility of new hires only, though a few states mandate it for employers located there.

In the summer of 2009, the Department of Homeland Security testified that, “the way our statute is written, [E-Verify] is just for new hires. It is not for current workforce.” Notwithstanding, after delaying implementation four times, the Obama Administration moved forward with a federal regulation mandating federal contractors and subcontractors to reverify current employees, as well as new hires, using E-Verify.  It became effective September 8, 2009.

Congress recently extended the voluntary E-Verify program for another three years—without lifting the statutory prohibition against reverification of current workers.  President Obama signed it into law on October 28, 2009.

The United States Senate attempted to lift the prohibition on reverification of current employees through two amendments to FY 2010 Homeland Security Appropriations—both of which passed by voice vote. These amendments were not included in the House version of the appropriations bill. One amendment, from Senator Charles Grassley (R-IA), which the U.S. Chamber of Commerce and other business groups supported, would have allowed employers to voluntarily reverify all workers using E-Verify. 

As Senator Grassley stated on the floor of the Senate during debate on his amendment, “Right now, E-Verify only allows the employer to check prospective employees, but we should be allowing them access to this free, online database system to check all of their workers.” The other amendment from Senator Jeff Sessions (R-AL), which the U.S. Chamber asked be modified to be more in line with Senator Grassley’s amendment, would have required reverification of all current workers by all federal contractors.