The validity of several state E-Verify laws may well be hanging in the balance awaiting a U.S. Supreme Court decision. E-Verify is the Internet-based system which allows employers to confirm the employment authorization of employees (see the USCIS website for more information). E-Verify is voluntary for most employers, although employers in certain states (such as Arizona and Mississippi) are required to use the system in addition to completing Form I-9 Employment Eligibility Verification for newly-hired employees. Certain federal government contractors also are required to use E-Verify for new hires and existing employees. As noted in the December 2010 issue of the Immigration E-Authority, the lawsuit contesting the validity of the Legal Arizona Workers Act (LAWA), which requires all Arizona employers to participate in the federal E-Verify system, may soon be decided. Existing E-Verify laws in states such as Mississippi and South Carolina could immediately be impacted as well. Several reports suggest the Court will be deadlocked 4 to 4, with newest Justice Elena Kagan having recused herself. A deadlocked decision would effectively uphold the underlying decision of the Ninth Circuit Court of Appeals which found LAWA to be valid.

In the meantime, U.S. Citizenship and Immigration Services (USCIS) reports that E-Verify is receiving high marks in customer satisfaction. E-Verify participation has grown to 243,000 employers nationwide with 16 million E-Verify queries being run in 2010. A newly released report from the Government Accountability Office (GAO) indicates that E-Verify accuracy has improved, although it also states “the government’s ability to ensure an authorized workforce is limited because E-Verify, like the Form I-9 process on which it is based, is vulnerable to identity fraud.” Without regard to the outcome of the Supreme Court case and growing pains faced by E-Verify, the report also indicates that “USCIS and SSA have taken actions to prepare for a possible mandatory E-Verify implementation.”


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Ogletree Deakins has one of the largest business immigration practices in the United States and provides a wide range of legal services for employers seeking temporary business visas and permanent residence on behalf of foreign national employees.

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