Every employer must check the immigration status and eligibility for employment of new workers. In most cases, just making sure that every new worker completes a Form I-9 and has documentation of his identity may be enough. But some employers have enrolled in the E-Verify program through U.S. Citizenship & Immigration Services. To explore this issue, we talked with Gretel Ness, a lawyer specializing in immigration issues for Parker, Butte & Lane, Portland, Ore.

“The typical question we get from employers is whether it is worthwhile to join E-Verify now?” says Ness. “Today, it’s a volunteer program, although some states require it on their projects and so do contracts for federal projects. But most employers are on the fence whether to join, or wait until it’s mandatory, or until they get a big contract that requires it.”

The E-Verify website, www.uscis.gov/e-verify, has voluminous information on the program, along with webinars and customer support. “It’s not a particularly cumbersome program,” says Ness, “but you do have to put a dedicated person in charge. The government makes it easy for employers and the customer service is good.

“Companies that want to be ahead of the curve are joining but it also depends on the type of workers a company has. Corporations with foreign nationals as employees that are professionals are comfortable with E-Verify because they are pretty sure they are not going to encounter issues like finding out that a lot of their workers are undocumented. That’s the purpose of the program, but companies find it is a balancing act. Companies that have a workforce with a high likelihood of being undocumented (like the construction industry), often take the chance so as not to eliminate all those workers and just pay the fine if they get audited or raided.”

Protect yourself

There are ways to protect your company without joining E-Verify, Ness explains. “Employers need to have an I-9 for every worker. Then you are somewhat protected if you are audited or raided by immigration. It shows you tried to comply. There is still some risk because sometimes the documentation presented is fake, but employers are not expected to be experts at detecting fraudulent documents. A good faith effort can lead to a warning or a reduced fine. We also tell employers to try to protect themselves by having an I-9 policy in place.”

If you do want the extra protection, enrolling in E-Verify is very simple. You start by signing a memorandum of understanding with the government allowing their auditors access to your documentation. Once you are enrolled, checking a person’s status takes only seconds online. “Once E-Verify is mandatory for employers, the playing field will be level—noncompliant employers will no longer be able to compete with compliant ones by paying under the table,” says Ness.

Immigration reform

Ness is skeptical that comprehensive immigration reform will pass anytime soon. “It’s a broken system,” she sexplains, “especially for construction workers since they don’t have documentation like professionals and can’t get a work visa. There is the H2B visa but the process is cumbersome. You have to prove that you can’t find an American worker to fill an opening. And even if you can do that, the visa might get issued for only 10 months. We always get the comment: Why don’t they just get in line for a work visa? But there’s no work visa to apply for.”

When or if comprehensive immigration reform passes, E-Verify will become mandatory. But the government will give employers a timeline to join. Maybe waiting is the best approach for now.