E-Verify in Indiana

By: Steven J. Olsen, J.D.

E-Verify is a free internet based database provided to employers through a partnership between the Department of Homeland Security (DHS) and the Social Security Administration (SSA).  E-Verify allows employers to confirm the legal working status of their new hires.  The program is voluntary to many, but is required for certain employers under Indiana’s new immigration law.

An employer must enroll in E-Verify if they meet any of the following three categories:

1)      The employer is an Indiana state agency or political subdivision and is hiring employees after June 30, 2011.

2)      The employer enters into contracts for services with an Indiana state agency or political subdivision after June 30, 2011, or is a first-tier subcontractor providing services under such contracts.

3)      The employer is seeking a grant of more than $1,000 from the state of Indiana or a political subdivision after June 30, 2011.

Employers who qualify under these three categories must enroll in the E-Verify program and confirm the eligibility of all new employees.  The employer must register online and enter into a Memorandum of Understanding with the DHS and SSA, which gives the DHS and SSA the right to audit the employer, access E-Verify related records, and interview the employer’s designated agents and employees who use the E-Verify system.  Upon accepting the Memorandum of Understanding, the employer must complete an online tutorial.

An employer has certain responsibilities after completing registration.  First, the employer must use E-Verify on all new hires after the job offer is accepted and Form I9 is completed, but before three business days pass from the date of hire.  Second, the employer must not use E-Verify in a discriminatory way or to prescreen applications.  Finally, an employer must post notice announcing participation in the program, and post the Anti-Discrimination Notice issued by the Department of Justice’s Office of Special Counsel for Immigration Related Unfair Employment Practices.

Generally, under Indiana law, an employer is prohibited from using E-Verify to confirm the employment eligibility of their existing workforce.  But an exception exists for some federal contractors, which are required to use E-Verify to confirm the eligibility of all new hires and all current employees assigned to the federal contract or subcontract.  Additionally, these federal contractors may, after notifying DHS, elect to verify their entire workforce.

Employers must consider the mandatory requirements under Indiana’s immigration law.  When considering these issues an employer should ask three important questions:

1)      Is my company required to enroll in E-Verify?

2)      If yes, what is my company required to do?

3)      If yes or no, what can my company choose to do and what is it precluded from doing?

Disclaimer: These materials are for informational purposes only and should not be construed as legal advice on any specific facts or circumstances. We recommend you consult a lawyer if you want professional assurance that your interpretation of these materials is appropriate to your particular situation.

 ©  Yoder Ainlay Ulmer & Buckingham, LLP [September 2011]