E-Verify Frequently Asked Questions
1. Is my company required to use E-Verify?
If your company meets the definition of “employer” set forth in N.C. Gen. Stat. § 64-25(4), you will be required to comply with North Carolina’s E-Verify law as of the appropriate effective date. Employer is defined as “Any person, business entity, or other organization that transacts business in this State and employs 25 or more employees in this State.”
Effective Oct. 1, 2012—employers with 500 or more employees will be required to use E-Verify to check work authorization for all new hires.
Effective Jan. 1, 2013—employers with 100 or more employees will be required to use E-Verify to check work authorization for all new hires.
Effective July 1, 2013—employers with 25 or more employees will be required to use E-Verify to check work authorization for all new hires.
The definition excludes state agencies, counties, municipalities and other governmental bodies. Note that state agencies, counties and municipalities have separate E-Verify requirements, but the N.C. Department of Labor does not have jurisdiction to investigate complaints with respect to these public entities.
2. How do I sign up for E-Verify?
Enrollment in E-Verify is not handled by the N.C. Department of Labor. Rather, the E-Verify system is operated by the U.S. Citizenship and Immigration Service (a division of the U.S. Department of Homeland Security). You may begin the E-Verify enrollment process at the U.S. CIS’s website: https://e-verify.uscis.gov/enroll/StartPage.aspx?JS=YES. Questions about enrollment should be directed to the E-Verify employer hotline at 1-888-464-4218.
3. If my company’s corporate headquarters are located in another state, but we have employees working in North Carolina, do we have to comply with North Carolina’s E-Verify law?
North Carolina’s E-Verify law requires that any employer that employs 25 or more employees in North Carolina (regardless the location of the employer’s headquarters) use the E-Verify system to verify the work authorization of newly hired North Carolina employees in accordance with the appropriate effective date. The effective dates are set out in Question 1, above.
4. My company employs 1,000 employees nationwide, but only 150 in North Carolina. With which effective date must we comply?
Jan. 1, 2013. For purposes of determining your company’s effective date, consider only the number of employees working in North Carolina. Similarly, if your company employs 250 employees nationwide, but only 75 in North Carolina, your company must begin complying with North Carolina’s law on July 1, 2013.
5. My company employs 20 permanent employees and 50 employees who work fewer than nine months within a calendar year. Must we comply with the E-Verify law?
No. The definition of employee set forth in N.C. Gen. Stat. § 64-25(3) does not include any individuals whose term of employment is less than nine months in a calendar year. These employees are not counted toward the 25-employee threshold that triggers mandatory compliance with the law.
If your company eventually employs 25 or more permanent employees, you must begin complying with North Carolina’s law with respect to the permanent employees only. North Carolina E-verify law does not require individuals who do not meet the definition of employee in the act be verified through the E-verify system. However, North Carolina law does not exempt an employer from federal law or the provisions of the Memorandum of Understanding required by the U.S. Department of Homeland Security when an employer signs up to use the federal E-Verify system.
6. Once my company has to begin complying with the E-Verify law, must I verify the work authorization of all existing employees?
No. North Carolina’s E-Verify law only requires verification of newly hired employees. Newly hired employees are those employees hired on or after the date the employer is required to comply with N.C. Gen. Stat. § 64-26. For example, if your company has 75 employees in North Carolina, only the work authorization of employees hired on or after July 1, 2013, must be verified.
7. Does my company have any legal recourse if we do not agree with the department’s findings that we did not verify an employee’s work authorization through the federal E-verify system?
Yes. Pursuant to N.C. Gen. Stat. § 64-36 and 13 NCAC 12 .0906, an employer may take exception to the department’s determination that employees were not properly e-verified and/or to the department’s assessment of a civil money penalty by filing a written petition for a contested case hearing with the N.C. Office of Administrative Hearings pursuant to Chapter 150B, Article 3 of the N.C. General Statutes.
8. My company occasionally rehires former employees. Must I verify the work authorization of an employee who worked for my company before the effective date? What if my company rehires someone who we have previously verified? Do we have to re-verify upon hire?
North Carolina’s E-Verify law does not make a distinction between a new hire and a rehire. However, the U.S. Citizenship and Immigration Services’ (which runs the E-Verify system) website maintains a question and answer page that addresses this topic and clarifies that a rehire is always considered a new hire for E-Verify purposes. Click on the following link for the specific question and answer regarding this topic.
9. After my company hires a new employee, how quickly must I verify the employee’s work authorization?
An employer is presumed to be in compliance with North Carolina’s E-verify law if the employer verifies the work authorization of an employee using E-Verify within three business days after the employee’s date of hire. See 13 NCAC 12 .0903(a). “Date of hire” is defined in 13 NCAC 12 .0902(2) as “the first day that an individual meets the definition of being an ‘employee’ of an ‘employer’ as set forth in G.S. 64-25.”
Further, the Memorandum of Understanding that employers sign upon enrolling in E-Verify requires that the employer initiate E-Verify procedures for new employees within three employer business days after the employee has been hired and after the Form I-9 has been completed.
10. Can my company use E-Verify while we are still evaluating an application for employment?
The E-Verify Memorandum of Understanding prohibits the use of E-Verify before an applicant has been hired and before the Form I-9 has been completed. For further information related to use of the E-Verify system, please contact the U.S. Citizenship and Immigration Service, Department of Homeland Security.
11. Will the N.C. Department of Labor conduct random employer audits to check for compliance?
North Carolina’s E-Verify law does not authorize or require the N.C. Department of Labor to conduct employer audits or to initiate an investigation against an employer if there has not been a complaint filed that sets forth the complainant’s basis for believing the employer is or has violated N.C. Gen. Stat. § 64-26. The NCDOL is only authorized and required to investigate valid complaints that specifically allege an employer has violated the E-Verify law by failing to verify a newly hired employee’s work authorization through E-Verify.
12. Is the N.C. Department of Labor obligated to report to law enforcement an employee who is not authorized to work in the United States? Similarly, is an employer required to report this information?
Pursuant to N.C. Gen. Stat. § 64-30(2), “If, during the course of the hearing … the Commissioner concludes that there is a reasonable likelihood that an employee is an unauthorized alien, the Commissioner shall notify … United States Immigration and Customs Enforcement” and “local law enforcement agencies.”
North Carolina’s E-Verify law does not address any requirements regarding an employer’s obligation to report this information. However, employers must still comply with all relevant state and federal laws, including the provisions of the E-Verify Memorandum of Understanding entered into with the Department of Homeland Security.
13. If a complaint is received against an employer, what documentation will the N.C. Department of Labor consider sufficient to prove that the employer has complied with the E-Verify law?
When entering into the E-Verify Memorandum of Understanding with the Department of Homeland Security, the employer will be able to print a confirmation or tentative non-confirmation screen containing the E-Verify case verification number for attachment to the employee’s Form I-9. This document is sufficient to show NCDOL that the employer has verified the work authorization of the employee in question in accordance with the E-Verify law.
14. What if the complaint is based on a specific individual whose term of employment is less than nine months in a calendar year? What documentation will an employer need to have in order to prove that the individual is not subject to the E-Verify law?
The employer will need to have documentation of the specific dates on which the individual performed work for the employer that shows that the individual is not an employee under the definition set forth in the law (N.C. Gen. Stat. § 64-25(3)).