E-Verify Program Requirements for F-1 OPT extensions in STEM fields

On April 8, 2008, Citizenship and Immigration Services (“CIS”) published a new interim final regulation, effective immediately, that allows students working pursuant to their F-1 student visa Optional Practical Training to extend their OPT from 12 months to 29 months if certain requirements are met, most importantly:

1.  That the student’s degree has been issued in a science, technology, engineering or math field (STEM); AND

2.  That the employer supporting their extension request be enrolled in the voluntary E-verify program run by CIS.

Enrollment in E-verify system has been, up to this point, voluntary.  A vast majority of employers have not enrolled in E-verify due to concerns over inherent errors and problems with the system.  Below is a description of the E-verify program and the pros and cons of enrolling in the program for your company to consider when deciding if you want to support an employee’s OPT extension request.

E-Verify Program

Employers in all 50 states may now use a Web-based system to verify that new hires are eligible to work in the United States. This program, called "E-Verify" (previously called "Basic Pilot"), is voluntary, but CIS is making it mandatory for employers who want to extend the OPT for their F-1 student employees. Here's how it works:

• Employers who choose to use the program must register to do so and complete a "Memorandum of Understanding" (“MOU”) -- essentially a contract with the government regarding use of the system. A detailed description of employer requirements contained in MOU will be discussed later. It must also designate authorized employees to use the system and these employers must complete an extensive online training and testing module.
• Employers then receive a user ID and password, which they can use to access the system and make sure a newly hired employee's documents match government records.
• If the Social Security number an employee provided matches the number on file with the Social Security Administration, and the employee’s Immigration documents (if applicable) match CIS records, then the employer will receive an immediate confirmation. If not, or if there is some other problem with the employee's documents, it might take a few days to receive a response.
• If the employer ultimately learns that an employee's work authorization cannot be verified, it will receive a tentative non-confirmation and be instructed to have the employee contact the Social Security Administration or CIS to clear up the matter and challenge the nonconfirmation.
• If the employee is unwilling or unable to resolve the tentative nonconfirmation within 10 days, it becomes a final non-confirmation. Continuing to employ the person after this time creates a rebuttable presumption that you are knowingly employing an illegal alien

Employers who choose to use the online verification service are still required to complete Form I-9 for every new hire; the service simply provides immediate information regarding the employee's eligibility. For more information on the program, go to: www.uscis.gov.

Benefits of Enrolling in E-Verify

The E-Verify program has some notable benefits for an employer:

• Once an employer registers with the program and signs an MOU with DHS, the employer then has the ability to electronically verify the name and employment eligibility of newly hired employees. An employer will receive electronic confirmation of the worker's employment eligibility, thereby significantly reducing the likelihood of receiving a "No Match" letter from the Social Security Administration (SSA) or DHS.
• Furthermore, while the program is currently voluntary, several states are making participating mandatory, in a stated effort to curb unauthorized employment. Enrolling now puts the company proactively in compliance with potential new legislation.
• Most importantly, F-1 students in STEM fields who have been approved by their school to apply for a 17 month extension of OPT will be eligible to do so once the company provides proof it is enrolled in E-verify. OPT extensions can be vital to some employee’s ability to remain in the U.S. in light of the H-1B US. Master’s Cap and Regular Cap lottery results.
• An employer who participates in the E-Verify program and only retains workers who DHS "confirms" are authorized is entitled to a presumption that it has not knowingly hired unauthorized workers, an offense that carries potential civil and/or criminal penalties.

Drawbacks of Enrolling in E-Verify:

Be aware that E-Verify has important restrictions and limitations:

• You may not pre-screen job applicants or verify employment eligibility for current employees on the E-Verify system. Company agents who improperly utilize the E-verify system for this purpose may expose the company to liability for unfair immigration-related or national origin discrimination claims. A recent E-verify survey noted 40% of current E-verify agents admitted to using E-verify improperly for this purpose at one time or another.
• There is also a shorter list of documents you may accept for the I-9 form and to use the program, you must grant the federal government the right to view certain employment records without a court order.
• The program also places some significant burdens on the employer. Pursuant to the terms of the MOU, an employer is limited to accepting for I-9 purposes only those identity documents that include a photograph.
• If the E-Verify system indicates a final nonconfirmation (a "No Match") and the employer continues to employ the worker, there is a rebuttable presumption that the employer has knowingly employed an unauthorized worker. This fact is particularly concerning in light of recent government-issued reports which found that 17.8 million discrepancies in the SSA database, with a large number of those errors involving authorized foreign workers. 
• If the final non-confirmation by E-verify was wrong (an error in their own database that they failed to correct within 10 days) and an employer terminates an employee upon receiving the non-confirmation, the employer may be liable for wrongful termination and national origin or unfair immigration-related claims. Thus, the employer may be in a position where they can incur potential liability or investigation regardless of what action they take upon receiving the final non-confirmation of an employee’s documents. 
• CIS keeps track of tentative and final nonconfirmations an employer has in E-verify and provides this information to Immigration and Customs Enforcement (ICE) to facilitate and encourage I-9 audits, worksite enforcement raids and other I-9 and employment-related sanctions investigations. 
• An employer who participates in E-Verify is obligated to permit the SSA and/or DHS to make "periodic visits" to the employer to review E-Verify related documents, including I-9s, thus waiving notice requirement rights provided to the employer by statute and certain 4^th Amendment search and seizure protections as “consent” to certain searches has been deemed to have been given by entering into the MOU.

Other Considerations

While the E-Verify system may provide an employer with a "match" or "no match" with respect to an employee's name and work authorization, participation in the program does not relieve an employer of its duty to review the documents presented by the new employee to complete Form I-9 and determine (1) if each document appears reasonably genuine on its face and (2) relates to the person presenting it.

Many savvy unauthorized workers now present a valid social security card and identity document, to satisfy E-verify, but the documents do not belong to the worker presenting them. The E-Verify system will likely show a "match," for the information contained in the documents and on the I-9 form, confirming work authorization when in fact the new hire could be an unauthorized worker fraudulent presenting himself or herself as work authorized. New models of E-verify contain photo options, but until there is a biometrics identifier in the E-verify database, such fraudulent document presentations will continue to occur.

Additionally, because E-verify’s erroneous nonconfirmation rate is nearly 100 times higher for foreign-born employees with CIS issued documents than it is for native-born employees, companies that an employ a large number of legal foreign workers are at greater risk of receiving erroneous non-confirmations and facing the lose-lose situation of firing a legal employee or further feathering ICE’s next I-9 investigation nest.

In Conclusion

There is no clear "right" answer as to whether a company should participate in E-verify. It is important the employer weigh these pros and cons in making a determination regarding participation in the E-Verify program and sponsoring F-1 employees OPT extension requests. In the meantime, regardless of their final decision, you need to continue to comply with the legal obligation to review the documents presented by the new employee for sufficiency as part of the employment eligibility verification process.