ATTENTION!! NEW E-VERIFY LAW MANDATORY FOR CERTAIN NC & SC EMPLOYERS:

Employers Covered By The Act:

State agencies in North Carolina, including public universities and community colleges, are already required by North Carolina law to use E-Verify. The new North Carolina law will apply to local government employers (municipalities and counties) and employers that employ 25 or more employees in North Carolina.

The Act will be phased in for different employers from October 1, 2011, through July 1, 2013. The employer must register and participate in E-Verify by the applicable date. On October 1, 2011, the Act takes effect for municipalities and counties in North Carolina. On October 1, 2012, the law takes effect for employers that employ 500 or more employees. On January 1, 2013, the law takes effect for employers that employ 100 or more employees. On July 1, 2013, the law takes effect for employers that employ 25 or more employees.

There is an exception for employers with seasonal temporary employees who work fewer than 90 days in a consecutive 12-month period. The law also does not apply to employers that employ fewer than 25 employees in North Carolina.

What Will Be Required Of An Employer Covered By The Act?

An employer covered by the Act will be required to enter a new hire’s information reported on the Form I-9, Employment Eligibility Verification, into the E-Verify program to determine the eligibility of that employee to work in the United States.

An employer must retain the records of the verification of the employee’s work authorization during the length of that employee’s employment and for one year after the end of the employment period.

Complaints Regarding Violations Of The Act:

Any person who has a good faith belief that an employer is violating the requirement to use E-Verify may file a complaint with the North Carolina Commissioner of Labor. The complaint may be anonymous. The commissioner will investigate valid complaints and may issue subpoenas for employment records from the employer as part of this investigation.

Penalties For Violation Of The Act:

For a first violation of the Act, the North Carolina Commissioner of Labor will order the employer to file a sworn affidavit within three business days after the determination that the employer has violated the Act. The employer must swear in the affidavit that it has consulted with the employee and requested a verification through E-Verify. Failure to timely file this affidavit subjects the employer to a $10,000 civil penalty. A second violation of the Act subjects the employer to an additional $1,000 civil penalty, and a third violation subjects the employer to a $2,000 civil penalty for each required employee verification that the employer failed to make. The Act contains a provision allowing an employer to appeal the Commissioner’s determination that the employer has violated the Act.

Beginning in 1997, several pilot programs that were designed to help employers determine if their newly hired employees were authorized to work in the United States under the Immigration Reform and Control Act were introduced. By 2003, all but one of them, the Basic Pilot, had proven inadequate to the task. In 2007 the Basic Pilot underwent further refinement and became the E-Verify Program, which is operated by U.S. Citizenship and Immigration Services (USCIS), an agency of the Department of Homeland Security. Since its inception, the American Payroll Association, through its Government Affairs Task Force Subcommittee on Immigration, has worked with USCIS to continually improve the program and make it easier for employers to use.

While most employers are not required to use E-Verify yet, each unsuccessful effort at immigration reform that has been proposed in the U.S. Congress over the last several years contained a requirement for nearly all employers to use E-Verify to check new hires' employment eligibility. And, it seems likely that any successful immigration reform legislation will also impose that requirement, so employers would be wise to become familiar with the basics of how to use E-Verify.

Q: WHAT IS E-VERIFY?
A: E-Verify is an Internet-based system that compares information from an employee's Form I-9, Employment Eligibility Verification, to data from U.S. Department of Homeland Security and Social Security Administration records to confirm employment eligibility.

Q:WHO USES E-VERIFY?
A: More than 246,000 employers, large and small, across the United States use E-Verify to check the employment eligibility of their employees, with about 1,000 new businesses signing up each week.
    While participation in E-Verify is voluntary for most businesses, some companies may be required by state law or federal regulation to use E-Verify. For example, most employers in Arizona and Mississippi are required to use E-Verify. E-Verify is also mandatory for employers with federal contracts or subcontracts that contain the Federal Acquisition Regulation E-Verify clause.

Q:WHY SHOULD I PARTICIPATE IN E-VERIFY?
A: E-Verify is currently the best means available for employers to electronically verify the employment eligibility of their newly hired employees. E-Verify virtually eliminates social security mismatch letters, improves the accuracy of wage and tax reporting, protects jobs for authorized U.S. workers, and helps U.S. employers maintain a legal workforce.

Q:HOW DO I REGISTER FOR PARTICIPATION IN E-VERIFY?
A: You can register for E-Verify at www.vis-dhs.com/EmployerRegistration, which provides instructions for completing the registration process. At the end of the registration process, you will be required to sign a Memorandum of Understanding (MOU) that provides the terms of agreement between you the employer, the SSA, and USCIS. An employee who has signatory authority for the employer can sign the MOU.

Q:I AM AN EMPLOYER WITH MULTIPLE HIRING SITES. CAN ONE SITE VERIFY EVERYONE? HOW?
A: Yes, one site may verify new hires at all sites. When registering, the individual at the site that will be verifying new hires should select "multiple site registration" and give the number of sites per states it will be verifying.

Q:I AM AN EMPLOYER WITH MULTIPLE HIRING SITES. DOES EVERY SITE NEED TO ENROLL IN E-VERIFY?
A: No, you can choose which sites to enroll.

Q:WHAT IS THE REQUIRED TIMEFRAME FOR CONDUCTING AN EMPLOYMENT ELIGIBILITY CHECK ON A NEWLY HIRED EMPLOYEE?
A: The earliest the employer may initiate a query is after an individual accepts an offer of employment and after the employee and employer complete the Form I-9. The employer must initiate the query no later than the end of three business days after the new hire's actual start date.
    An employer may initiate the query before a new hire's actual start date; however, it may not pre-screen applicants and may not delay training or an actual start date based upon a tentative non-confirmation or a delay in the receipt of a confirmation of employment authorization. An employee should not face any adverse employment consequences based upon an employer's use of E-Verify unless a query results in a final non-confirmation. In addition, an employer cannot use an employment authorization response to speed up an employee's start date. This would be unfair treatment to use E-Verify results to accelerate employment for this employee compared to another who may have received a tentative non-confirmation.
    For example, Company X always assigns a start-date to new employees that is two weeks after the employee has completed an approved drug test. After the employee has accepted a job with Company X and after the employee and Company X complete the Form I-9, the company can initiate the E-Verify query. However, the company cannot speed up or delay the employee's start date based upon the results of the query (unless the program issues a final non-confirmation, in which case the employee should not be further employed).
    Employers must verify employees in a non-discriminatory manner and may not schedule the timing of queries based upon the new hire's national origin, citizenship status, race, or any other characteristic that is prohibited by U.S. law.