Are you hiring undocumented workers?

Regardless of the industry you are in, making sure your business is employing people who are authorized to work in the US is a big concern and has become a hot topic in the recent months. The New York Times and various other news outlets have identified the restaurant and bar industry as one of the most common places to find undocumented workers.

While the Form I-9 was implemented to assist employers in determining whether or not their employees had valid work authorization, there is always the chance that the document or information provided by the worker (and even adequately checked by the employer) may not be valid or authentic. In these cases, the employer is still held liable for the employment of an unauthorized worker.

To help alleviate some of the stresses involved with hiring process, especially in industries where undocumented workers are most commonly found, E-verify was introduced.


In 1997, ICE (now the USCIS, United States Citizenship and Immigration Services) began testing a program known as the Basic Pilot Program to assist employers in identifying issues with the work authorization of their potential employees. Presently, this system is called the E-verify system and despite the controversy surrounding its use, it has grown in use and popularity over the past few years.

What is it:

E-verify is a system that takes information from the completed Form I-9 and compares it to data from the Department of Homeland Security (DHS) database and the Social Security Administration (SSA) records.  The information is used to confirm the eligibility of an employee for employment in the United States.

NOTE: The system is not fool proof – which is why it is so controversial

While not all states require their employers to enroll in the program there is currently a new proposal circulating that will make E-Verify a mandatory program for all employers in every state in the U.S.

Where is it used:

Currently, there are 30 states, including New York, that do not require E-Verify enrollment for any employer. Out of these 30, Rhode Island, Illinois and California are even leaning towards discouraging the use of the system.

An exception applies to employers who hire foreign students enrolled in Science, Technology, Engineering and Math who are applying for their  Optional Practical Training. These employers MUST be enrolled in the E-verify program.

It is important to note that over the next few months, the participating states and E-Verify requirements may change drastically, especially for those states who do not require E-Verify AT ALL. It is important to stay up to date on this information to ensure that you are staying compliant.

This table provides a list of states that require E-verify and details which employers must be enrolled in the program.