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Is My Business Required to Use E-Verify?

Federal law prohibits employers in the United States from employing individuals who may not legally work in the U.S. Electronic employment verification, or E-Verify, is the system Congress established to allow U.S. employers to determine whether a prospective employee may legally work in the U.S. E-Verify supplements the I-9 process; an employer cannot initiate an E-Verify query for a new hire until after the I-9 process is complete. The internet-based system allows businesses to determine whether their work force is legal. Despite the system being free and relatively easy to use, many business owners still want to know if they are legally obligated to use it.

Currently, the only governmental requirement to use E-Verify that applies to employers generally is found in state law. Kentucky has not passed legislation requiring employers to use E-Verify, but twenty-two other states have. Some require the use of E-Verify unless an additional, alternate verification step is completed in accordance with state law. Other states require E-Verify only for contractors or public employers. Federal law requiring the use of E-Verify is limited to certain specific circumstances, such as the Federal Contract Rule applicable to contractors receiving new federal contracts.

Although many employers are not required to use E-Verify today, it is highly likely that some mandatory use of E-Verify will be required in the future for all employers. In April 2013, Congressman Goodlatte introduced House Bill 1773 that, if passed, would require E-Verify to be phased in at different intervals in accordance with an employer's size. A similar bill currently in the Senate calls for mandatory use within four years.

Opponents to the use of E-Verify state that mandatory usage could result in higher hiring costs for businesses, as well as the possibility of system-based errors that would exclude legal workers from employment. Businesses that rely heavily on immigrant workers may face the greatest challenges with E-Verify, as errors could significantly cut their work force.

If you are a Kentucky business, E-Verify is available, but it is not required. With the current push for immigration reform, the use of E-Verify may become mandatory soon.

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Thomas D. Flanigan is a member of McBrayer, McGinnis, Leslie & Kirkland, PLLC in the Lexington, KY office. Mr. Flanigan specializes in the areas of entrepreneurial business, lending and commercial services and mergers and acquisitions. He can be reached at tflanigan@mmlk.com or 859-231-8780.

This article does not constitute legal advice.

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