On June 6, 2008, President George Bush amended Executive Order 12989 and directed all federal departments and agencies to require their certain contractors use an electronic employment eligibility verification system designated by the Department of Homeland Security (DHS). On June 9, the DHS designated E-Verify as the verification system that federal contractors must use.

A final rule was published in the Federal Register on Nov. 14, 2008. The final rule directs all federal agencies to require that certain federal contractors and subcontractors begin using the U.S. Citizenship and Immigration Services’ (USCIS) E-Verify electronic employment eligibility verification system beginning Jan. 15, 2009.

After the US Chamber of Commerce, SHRM, and two other organizations filed suit in federal court to set aside the regulation, alleging that it was illegal, the US Department of Justice delayed the effective date of E-Verify for Federal Contractors until Feb. 20, 2009. A second extension, to May 21, 2009, occurred after a memo issued by the Obama Administration asked federal agencies and departments to consider extending the effective date of any regulations which had not yet taken effect so the new administration had time to review them. A third extension to June 30, 2009, was announced on April 17, 2009. A fourth extension, to Sept. 8, 2009, was announced in early June.

Executive Order 12989

DHS press release

USCIS FAQ

USCIS Press Release

Federal Register Final Rule

USCIS: E-Verify for Federal Contractors Extended to May 21, 2009.

Federal Register Notice Announcing Delay to Sept. 8, 2009

USCIS Press Release Announcing that E-Verify Rule for Federal Contractors is Effective

House Bill 56, also known as the Beason-Hammon Alabama Taxpayer and Citizen Protection Act, requires all Alabama employers to enroll in and use the federal E-Verify program. The law takes effect in two stages:

1. Effective Jan. 1, 2012, employers with state contracts and subcontracts must provide documentation that they are enrolled and participating in E-Verify.
2. Effective April 1, 2012, all employers in Alabama must enroll in E-Verify to verify the employment eligibility of their new hires.

Bill Text

The new law establishes a safe harbor from sanctions for Arizona employers who participate in the US Department of Homeland Security's E-Verify program. All Arizona employers must participate in E-Verify after December 31, 2007.

An initial lawsuit was dismissed on procedural grounds and was re-filed. A federal district court judge dismissed the second lawsuit, rejecting claims that the law is pre-empted by federal law and that it denies employers procedural due process. The request to delay implementation of the Legal Arizona Worker's Act was also refused and the U.S. Court of Appeals for the Ninth Circuit upheld this decision. The US Supreme Court also upheld the law.

Governor’s Press Release

Federal judge denies injunction against Arizona immigration law

Supreme Court upholds Arizona E-Verify law

Except as required by federal law or as a condition of receiving federal funds, Assembly Bill 1236 prohibits the state, counties, cities or special districts from requiring an employer to use an electronic employment verification system.

Bill Text

Requires that employers who have contracts with a Colorado state agency or political subdivision use the Department of Homeland Security's E-Verify program for I-9 employment eligibility verification to verify the status of its newly hired employees.

City ordinance requires that the city and employers with city contracts verify the eligibility of new employees through E-Verify.

Requires state agencies under the direction of the governor to use the E-Verify system to check the employment eligibility of their current and prospective employees*. The order also requires state agencies to include in all state contracts a requirement that contractors utilize the E-Verify system to verify the employment eligibility of:

• All persons employed by the contractor during the contract term to perform duties within Florida
• All persons, including subcontractors, assigned by the contractor to perform work under the contract with the state agency.

*The Executive Order indicates that employers must use E-Verify to check the employment eligibility of "current and prospective employees." However, E-Verify can only be used to verify the employment eligibility of new hires, with the exception being federal contractors with the Federal Acquisition Regulation clause. The Governor's office has indicated that those affected by Executive Order 11-02 are expected to utilize the E-Verify system in accordance with applicable state or federal guidelines. If you have a contract with a state agency, or if you anticipate entering into a contract with a state agency, please contact that agency directly for more specific guidance regarding how Executive Order 11-02 may impact you.

1. SB 529, passed in 2006 and effective July 1, 2007, requires public employers and any contractors and subcontractors to a public employer use E-Verify. Employers with 500+ employees must register by July 1, 2007, those with 100+ by July 1, 2008, and all public employers must be registered by July 1, 2009.
2. HB 87, passed in 2011, requires E-Verify for all Georgia employers with more than 10 employees. The bill takes effect in three stages:
   • Effective Jan. 1, 2012, employers with more than 500 employees are required to use E-Verify
   • Effective July 1, 2012, employers with 100 or more employees are required to use E-Verify
   • By July 1, 2013, employers with more than 10 employees must use the E-Verify program.

Illinois has taken a unique approach with Public Act 95-0138. The act states “Employers are prohibited from enrolling in any Employment Eligibility Verification System, including the E-Verify (formerly Basic Pilot) program, until the Social Security Administration and Department of Homeland Security databases are able to make a determination on 99% of the tentative non-confirmation notices issued to employers within 3 days, unless otherwise required by federal law.”

*The law was scheduled to take effect on January 1, 2008, but was not enforced after a lawsuit was filed against the state by the DHS. On March 11, 2009, United States District Court Judge Jeanne E. Scott permanently enjoined the state of Illinois from enforcing the law.

Indiana Senate Bill 590 requires state agencies, political subdivisions and companies entering into new or renewing public contracts for services after June 30, 2011, to use the E-Verify program. Additionally, certain subcontractors and state grant recipients are required to use E-Verify. The bill also encourages E-Verify use by disallowing certain state income tax credits and deductions unless the employer participates in the E-Verify program.

Bill Text

Louisiana passed two bills related to use of the federal E-Verify program:

1. House Bill 342 prohibits state contractors from bidding or contracting on state work without first submitting an affidavit attesting they will use the federal E-Verify program. The bill also requires contractors to obtain sworn statements from subcontractors attesting that they use E-Verify. Penalties for failure to comply with the bill include contract termination and up to a three year ban from bidding or contract work. The bill applies to contracts entered into or bids offered on or after Jan. 1, 2012.
2. Unlike many other state E-Verify laws, House Bill 646 doesn't require employers to use E-Verify. Instead, it encourages E-Verify by exempting employers who have used the E-Verify program from penalties should they be found to employ illegal immigrants. The bill also exempts individuals from penalties should the employer retain a copy of one of the following documents:
   1. US birth certificate or certified birth card
   2. Naturalization certificate
   3. Certificate of citizenship
   4. Alien registration receipt card.
   5. US immigration form I-94
   The bill takes effect Aug. 15, 2011.

House Bill 342 text

House Bill 646 text

Governor Tim Pawlenty issued an executive order stating that all hiring authorities within the executive branch of state government as well as any employer seeking to enter into a state contract worth in excess of $50,000 must participate in the E-Verify program.

Businesses and individuals applying for state economic incentives will not be required to participate in E-Verify but will have to certify that they do not employ unauthorized workers.

On April 4, 2011, new Governor Mark Dayton extended a number of executive orders, but Executive Order 08-01 was not one of them.

However, on July 20, 2011, Governor Dayton signed an appropriations bill which required state contractors with contracts in excess of $50,000 to participate in the E-Verify program.

Governor’s Press Release

Executive Order in the State Register

Appropriations Bill Text

Governor’s Press release

The bill requires:

1. All public employers must confirm the employment eligibility of their new hires using the E-Verify system.
2. All contracts between a public employer and a contractor include a provision requiring the contractor to use E-Verify to confirm the work eligibility of their new employees.
3. Businesses seeking certain Nebraska business tax incentives to use E-Verify to check the employment eligibility status of new hires. The above requirements are not retroactive in application, therefore current employees and existing contracts are not affected.

The above requirements are not retroactive in application, therefore current employees and existing contracts are not affected.

All state agencies, offices, and universities must use E-Verify to ensure that every employee is legally eligible to work. This statute applies to employees hired on or after January 1, 2007, except for employees of local education agencies hired on or after March 1, 2007.

House Bill 36 requires all employers with 25 or more employees to use E-Verify. The bill becomes effective in four stages:

1. Oct. 1, 2011: Counties and municipalities must use E-Verify.
2. Oct. 1, 2012: Employers who employ 500 or more employees must use E-Verify
3. January 1, 2013 - Employers that employ between 100 and 500 employees must use E-Verify
4. July 1, 2013 - Employers that employ between 25 and 100 employees must use E-Verify

Requires state and local government agencies and private employers with government contracts to check the immigration status of newly hired employees. Public employers must use the E-Verify beginning Nov. 1, 2007. Contractors have until July 1, 2008 to begin screening newly hired employees.

*On June 4, 2008, the U.S. District Court for the Western District of Oklahoma issued an injunction barring the state from enforcing the state's E-Verify law. The injunction will prevent Oklahoma from enforcing the law until a final decision is reached on whether the Oklahoma law should be invalidated because it is preempted by federal law. Oklahoma has appealed the district court’s decision.

Bill Text

Text from the Injunction Barring the State from Enforcing the E-Verify law

On March 27, 2008, Governor Donald Carcieri signed Executive Order 08-01, requiring:

• The Rhode Island Department of Administration must use E-Verify for all new hires of the Executive Branch and,

• The Department of Administration shall require all persons and businesses, including grantees, contractors, sub-contractors and vendors doing business with the state of Rhode Island to register and use E-Verify.

On January 5, 2011, Governor Lincoln Chafee rescinded Executive Order 08-01. It is no longer in effect.

HB 4400 requires that employers use E-Verify or other federal work authorization program to verify the employment eligibility of new hires or, only employ workers who possess a valid driver’s license or identification card issued by South Carolina or other state approved by the South Carolina Department of Motor Vehicles.

The law is implemented in three phases:

• Effective Jan. 1, 2009: All public employers and public contractors with 500 or more employees

Tennessee's House Bill 1378, "The Lawful Employment Act," requires employers to either enroll in E-Verify to verify the work authorization of all new hires and maintain results for those individuals or request and retain a copy of one of the following documents:

• A valid Tennessee driver license or photo identification license issued by the department of safety;
• A valid driver license or photo identification license issued by another state where the issuance requirements are at least as strict as those in Tennessee, as determined by the department of safety;
• An official birth certificate issued by a U.S. state, jurisdiction or territory;
• A U.S. government-issued certified birth certificate;
• A valid, unexpired U.S. passport;
• A U.S. certificate of birth abroad;
• A report of birth abroad of a citizen of the U.S.;
• A certificate of citizenship;
• A certificate of naturalization;
• A U.S. citizen identification card; or
• Valid alien registration documentation or other proof of current immigration registration recognized by the U.S. Department of Homeland Security that contains the individual's complete legal name and current alien admission number or alien file number.

• Effective January 1, 2012: employers with more than 500 employees
• Effective July 1, 2012: employers with 200 to 499 employees
• January 1, 2013: employers with 6 to 199 employees
• Employers with less than 6 employees will not have to use E-Verify.