Source: Elizabeth Ricci, Esq.
On January 1, 2021, a Florida law went into effect that requires E-Verify enrollment by all government employers such as county school districts, public institutions of higher learning, government agencies, and all their W-9 independent contractors.
E-Verify is the internet-based companion to Form I-9 Employment Eligibility Verification that allows an employer, in three to five seconds, to determine a worker’s employment authorization status by comparing information listed on Form I-9 with some 455 million Social Security records and 80 million Homeland Security visa, citizenship and U.S. passport records.1
According to Tallahassee-based employment law attorney Robert J. Sniffen, “The Florida Legislature and Governor DeSantis have made it clear that whether to use E-Verify is no longer a preference, but a requirement for all covered entities in the public and private sectors.”
Likewise, General Manager of the Governors Club, a private social club in Tallahassee noted, “whether required or optional, using E-Verify shows clients and customers that you have a lawful workforce. Besides, employers who voluntarily use the system now will be better positioned in the future should enrollment ever become mandatory.”
The Department of Homeland Security strongly encourages, but does not currently require, states to mandate employers’ enrollment in E-Verify. Under the new Florida law, however, any private employer who does not use E-Verify must maintain copies of the documents used to complete the Form I-9 for three years (which is currently optional under federal law).
“The I-9 is a deceptively simple form for which the consequences of non-compliance can mean civil and criminal penalties. If the E-Verify system continues to be free, if legal workers are not harmed by its use and if Florida businesses can benefit by increasing competitiveness, Florida employers should consider voluntary enrollment,” said Sniffen.
E-Verify was hailed by President George W. Bush as “the best means available to confirm the work authorization of the workforce.” 2 Likewise, other advocates of enrollment claim “[t]he statistics show E-Verify works . . . . Even for employees who receive initial mismatches and are later confirmed as work authorized, E-Verify informs them of possible errors with their government records. By clearing up mismatches sooner rather than later, E-Verify can save these employees significant time and frustration.”3
The system, however, crashes regularly. During outages, enrollees cannot access accounts, create new profiles or run any reports. Users are advised to document outages to show good faith in the instance of an audit.
Because the system cannot recognize counterfeit or stolen documents, it is not entirely effective. For example, an employee could present documents that appear valid but do not actually pertain to the worker. Moreover, due to federal database errors, it often wrongly flags US citizens and documented workers as “nonconfirmations” who could be denied employment and paychecks.”4
Failure to complete and maintain I-9s can result in a notice of suspect documents by ICE which, if not handled timely or correctly, can result in significant fines, and for repeat offenders, even imprisonment. Failure to comply with Florida’s E-verify law could result in temporary or permanent business license termination.
To avoid such penalties, it is strongly suggested that all employees, regardless of citizenship, have a properly filed and maintained I-9.
1, 3 e-verify.gov (accessed January 8, 2021)
2 https://www.sun-sentinel.com/sfl-mtblog-2008-06-bush_begins_everify_immigratio_1-story.html
4 AILA Infonet 09070868
Elizabeth Ricci is the managing partner of Rambana & Ricci, PLLC in Tallahassee where she has concentrated on employment-based immigration for twenty years. She counsels employers on I-9 compliance, E-Verify enrollment, strategy and audit defense. She received her B.S. in International Business from Barry University and her J.D. from Nova Southeastern University where she argued on the First Amendment Moot Court team. She is an E-Verify enrolled employer-agent.