On April 8, 2008, Citizenship and Immigration Services (“CIS”) published a new interim final regulation, effective immediately, that allows students working pursuant to their F-1 student visa Optional Practical Training to extend their OPT from 12 months to 29 months if certain requirements are met, most importantly:

1.  That the student’s degree has been issued in a science, technology, engineering or math field (STEM); AND

2.  That the employer supporting their extension request be enrolled in the voluntary E-verify program run by CIS.

Enrollment in E-verify system has been, up to this point, voluntary.  A vast majority of employers have not enrolled in E-verify due to concerns over inherent errors and problems with the system.  Below is a description of the E-verify program and the pros and cons of enrolling in the program for your company to consider when deciding if you want to support an employee’s OPT extension request.

E-Verify Program

Employers in all 50 states may now use a Web-based system to verify that new hires are eligible to work in the United States. This program, called "E-Verify" (previously called "Basic Pilot"), is voluntary, but CIS is making it mandatory for employers who want to extend the OPT for their F-1 student employees. Here's how it works:

Employers who choose to use the online verification service are still required to complete Form I-9 for every new hire; the service simply provides immediate information regarding the employee's eligibility. For more information on the program, go to: www.uscis.gov.

Benefits of Enrolling in E-Verify

The E-Verify program has some notable benefits for an employer:

Drawbacks of Enrolling in E-Verify:

Be aware that E-Verify has important restrictions and limitations:

Other Considerations

While the E-Verify system may provide an employer with a "match" or "no match" with respect to an employee's name and work authorization, participation in the program does not relieve an employer of its duty to review the documents presented by the new employee to complete Form I-9 and determine (1) if each document appears reasonably genuine on its face and (2) relates to the person presenting it.

Many savvy unauthorized workers now present a valid social security card and identity document, to satisfy E-verify, but the documents do not belong to the worker presenting them. The E-Verify system will likely show a "match," for the information contained in the documents and on the I-9 form, confirming work authorization when in fact the new hire could be an unauthorized worker fraudulent presenting himself or herself as work authorized. New models of E-verify contain photo options, but until there is a biometrics identifier in the E-verify database, such fraudulent document presentations will continue to occur.

Additionally, because E-verify’s erroneous nonconfirmation rate is nearly 100 times higher for foreign-born employees with CIS issued documents than it is for native-born employees, companies that an employ a large number of legal foreign workers are at greater risk of receiving erroneous non-confirmations and facing the lose-lose situation of firing a legal employee or further feathering ICE’s next I-9 investigation nest.

In Conclusion

There is no clear "right" answer as to whether a company should participate in E-verify. It is important the employer weigh these pros and cons in making a determination regarding participation in the E-Verify program and sponsoring F-1 employees OPT extension requests. In the meantime, regardless of their final decision, you need to continue to comply with the legal obligation to review the documents presented by the new employee for sufficiency as part of the employment eligibility verification process.

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