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E-Verify requires you to hire illegal workers

Our company recently had to register a new business name, which in Georgia requires a new business license.   E-Verify is not yet a requirement for a license renewal (it will be in 2013), but the over 460,000 individuals who apply for a new license each year in Georgia may be surprised to find out that E-Verify is now a requirement for their small startup.

Here is a summary of some of the more interesting things we discovered along the way to becoming an E-Verify company.

1. E-Verify requires that you hire illegal workers

E-Verify checks employee social security numbers with records from the Social Security Administration and the Department of Homeland Security.  But you cannot run a check on the employee until after they have accepted a position with your company.  You also must run this check within three workdays of when they started work.

This could be a disaster for a small company.  Suppose you advertise an opening and receive 100 resumes for the position.  You whittle this down to 15 candidates and schedule interviews.  Five don’t show, and of the remaining 10 you have three you want to call back for a second interview.  It has now been three weeks (at best) and you have selected your top candidate, and after a week of negotiations he accepts your offer.  Only now can you check to see if your new employee is legally able to work in the US – and if he isn’t, what do you do about the position?  What about the other candidates who have already accepted jobs?

2. And you may have to keep an illegal alien on the payroll for weeks

How long can it take before you can legally terminate the worker?  If E-Verify informs you that the employee may not be eligible you must notify the employee.  They then have 8 federal workdays to contact either the SSA or DHS (whichever agency could not verify the employee’s status) and present their case.  The government then has 10 federal workdays to let you know their findings – although they admit that it could take longer.  During that entire time… “The employee may NOT be terminated or suffer any adverse employment consequences based on the employee’s perceived employment authorization status (including denying, reducing, or extending work hours, delaying or preventing training, requiring an employee to work in poorer conditions, refusing to assign the employee to a federal contract or other assignment, or otherwise subjecting the employee to anything that indicates he or she is unauthorized to work)”

For the small company listed above, now you are in real trouble.  Not only did you reject other qualified candidates and hire an employee who probably isn’t legal, but you now have to continue to pay him and even train him, wasting money (and time) that you don’t have, knowing all the time that you will probably have to start the hiring process all over again.

3. E-Verify companies can actually hire as many illegals as they want (the Giant Loophole)

Here is one of the most surprising things.  E-Verify calls the notice from SSA or DHS that the worker could not be verified a “Tentative Nonconfirmation,” or TNC.  No action can be taken on the basis of a TNC.  Instead the worker has the right to contest the result.  If a company is mandated to use E-Verify but wants to hire illegal workers all they have to do is never have any employee contest their TNC.  The employer then simply closes the E-Verify case.  Here is the wording from the E-Verify website: “If you continue to employ the individual, close the case in E-Verify by selecting ‘The employee continues to work for the employer after choosing not to contest.’”  There you go.  Company participates in E-Verify but still hires illegal workers and the burden to keep illegal aliens out of our workforce falls back on the Feds.  And we know what a great job they have been doing with that.

4.  The Federal Government may be able to access your PC

Here is a statement you must agree to before you access the E-Verify system:

WARNING – You are about to access a Department of Homeland Security (DHS) computer system … there can be no expectation of privacy in the course of your use of this computer system. The use of a password or any other security measure does not establish an expectation of privacy. There is no expectation of privacy in any media, peripherals or other devices placed in or connected to the computer system.

To play it safe you should probably set up a special PC that is not on your corporate network to access this and any other government website.

5. You keep using that word. I do not think it means what you think it means.

As an employer, you must declare that you will NOT “… use E-Verify to discriminate against ANY job applicant or new hire on the basis of his or her national origin, citizenship or immigration status.”  This idea is all over the E-Verify website, with statements like “The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) investigates charges of job discrimination as it relates to an individual’s citizenship, immigration status or national origin.”

The first definition for discriminate in most dictionaries is “Recognize a distinction; differentiate.”  Employers are using the E-Verify system to select which workers will be able to work at their company and which will not.  This, by definition, is discrimination.  I guess it makes them feel better to state that it is not.

6.  Can an illegal alien collect unemployment after they are fired?

I don’t know the answer to this one, but I don’t see why they couldn’t apply.  The only thing it says about what you can do after taking all the steps to find out he is here illegally is “… you can close the case and employment can be terminated with no civil or criminal liability.”  But during the three or four weeks that the process took the illegal was an employee of your company.

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RightSideBonus (stuff I discovered but couldn’t really fit into the article)

You have to prominently display E-Verify signs in English and Spanish where candidates will see them. We put them in our lobby, and, I must say – they look very nice (we spared no expense and printed them in color and framed them). But, unlike every other government site I have visited, it appears the E-Verify website is only in English. Score one for E-Verify, I guess…

You can only access the E-Verify system with Internet Explorer of Netscape. IE I can understand, but Netscape? Really?

The Office of Special Counsel for Immigration-Related Unfair Employment Practices - I didn’t even know such a thing existed. This sounds like another article…

Anytime I can work in a quote from “The Princess Bride” I know I have done a good job.

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