State E-Verify Legislation: A Summary

May 21, 2008

Lindsay L. Chichester


Although there is no federal mandate in effect at this time that employers participate in the government's E-Verify program (an Internet-based system operated by the Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA) that allows participating employers to electronically verify the employment eligibility of their newly hired employees), a growing number of states require some or all employers to utilize E-Verify. Below, we outline the effective dates and impacts on state E-Verify legislation.

The following states have passed E-Verify legislation:

State	Effective Date	Which Employers are Impacted
Arizona	January 1, 2008 (as amended on May 1, 2008)	Requires all Arizona employers to participate in E-Verify
Colorado	August 9, 2006	Requires all state contractors to participate in E-Verify
Georgia	July 1, 2007	Requires all public employers and contractors and subcontractors with state and local public employers to participate in E-Verify
Illinois	January 1, 2008	Bans employers from using E-Verify until the SSA and DHS can provide a three-day response in 99% of cases that receive a tentative non-confirmation for employers utilizing the E-Verify system. The law is not in effect at this time because DHS has filed a lawsuit against the state and this litigation is still pending.
Minnesota	January 29, 2008 (by Executive Order)	Requires the state’s executive branch and all state contractors to participate in E-Verify
Mississippi	July 1, 2008 and later	Requires participation in E-Verify for all employers in the state, but participation will be phased in based on the size of the employer, as follows: · Employers with 250 or more employees must begin participation in E-Verify by July 1, 2008. · Employers will 100 to 249 employees must begin participation in E-Verify by July 1, 2009. · Employers with 30 to 99 employees must begin participation in E-Verify by July 1, 2010. · Employers with 1 to 29 employees must begin participation in E-Verify by July 1, 2011.
Missouri	January 1, 2009	Requires state offices and agencies to participate in E-Verify, as well as (1) all state contractors for contracts in excess of $5,000 and (2) for any business entity receiving a state-administered or subsidized tax credit, tax abatement, or loan from the state, with respect to the employees working in connection with the contracted services.
North Carolina	January 1, 2007	Requires all state offices and agencies (including universities) to participate in E-Verify
Oklahoma	November 1, 2007 UPDATE: On June 4, A U.S. District Court Judge has delayed enforcement of this law; therefore, it is not in effect at this time.	Requires state and local agencies and contractors with those public agencies to participate in E-Verify.
Rhode Island	March 27, 2008 (by Executive Order)	Requires the state’s executive branch and all state contractors and subcontractors to participate in E-Verify
South Carolina	June 4, 2008	Requires all South Carolina employers to participate in E-Verify. Participation will be phased in based on the type and size of the employer: · Public employers and state contractors and subcontractors with at least 500 employees must begin participation by January 1, 2009; · Public employers and state contractors and subcontractors with 100-499 employees must begin participation by July 1, 2009; · Public employers and state contractors and subcontractors with 99 or fewer employees must begin participation by January 1, 2010. · All private employers of 100 employees or more must begin participation in E-Verify by July 1, 2009; and · All private employers of less than 100 employees must begin participation in E-Verify by July 1, 2010.
Tennessee	January 1, 2008	Does not require employers to participate in E-Verify, but provides a unique incentive that the current federal regulations do not offer. Employers who verify new hires using E-Verify within 14 days of the commencement of employment are protected from sanctions for hiring unauthorized workers.
Utah	July 1, 2009	Requires public entities to participate in E-Verify or a similar employment verification system and forbids those public entities from entering into contracts with contractors who do not participate in E-Verify or a similar employment verification system.

As more and more states have introduced bills regarding E-Verify, and the debate surrounding the benefits and concerns about E-Verify continues to swirl, this list is sure to grow. Employers should check which states they do business in and take any necessary steps.

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Beyond the States - Cities and the Federal Government on E-Verify

Mission Viejo, California
In addition to state legislation, the city of Mission Viejo in California has passed a city ordinance regarding E-Verify. In Mission Viejo, employers with a city contract must verify the eligibility of new employees through E-Verify.

E-Verify Mandated for Future Federal Contracts
On June 6, 2006, President Bush issued an amended Executive Order directing all federal departments and agencies to require their contractors to use an electronic employment eligibility verification system designated by the Department of Homeland Security (DHS). On June 9, the DHS designated E-Verify as the verification system that federal contractors must use to verify that their new hires are legally eligible to work in the U.S.

A Proposed Rule (federal regulation) was published in the Federal Register on June 12, 2008. As proposed, the federal government will impose the E-Verify requirement for all contracts over $3,000, regardless of the size of employer, and the E-Verify requirement will apply to contractors and subcontractors. Also, contractors and subcontractors will be required to confirm the employment eligibility of (i) all new hires and (ii) all existing employees directly engaged in the performance of work under the covered contract. This is a significant change from existing E-Verify guidelines. There is a 60 day comment period for this proposed rule, after which the government will review those comments and publish a final rule (in other words, a binding regulation). Therefore, it will likely be several months (or possibly longer) before the obligations announced under the Executive Order will become effective.