DHS Contradictions on E-Verify Causing Uncertainty for Employers

A recent controversy in Maine spotlighted the shortcomings of the federal government’s E-Verify system and the inconsistent messages employers are receiving about its reliability from the federal government.

For businesses across the country, the episode underscores a fundamental compliance dilemma: if the federal government tells employers to use E-Verify, but then criticizes them for relying on it to confirm work authorization, how can companies realistically protect themselves from potential liability for hiring undocumented workers?

The Maine Police Department Incident

The Old Orchard Beach (Maine) Police Department made national news when it hired a reserve police officer who was later found to be working in the U.S. unlawfully. Within weeks of his hiring, federal officials intervened, forcing that police officer to voluntarily depart the police force.

The real controversy stemmed from the fact that the officer had submitted what appeared to be completely legitimate documents and had been cleared by both the I-9 Employment Eligibility Verification process and E-Verify, the federal database designed to confirm work authorization. The police chief emphasized the department followed the same procedures required of every U.S. employer. Yet, ICE later accused the department of “knowingly breaking the very law they are charged with enforcing” and criticized what it described as “reckless reliance on E-Verify.”

That criticism, coming from the very agency that administers the E-Verify program, surprised many employers and legal practitioners. Many employers and professionals had long operated under the assumption that these systems were dependable—that was, after all, their intended purpose.

Mixed Messages from the U.S. Department of Homeland Security

The DHS website describes E-Verify as “fast, accurate, and reliable,” boasting that most inquiries are resolved in “three to five seconds” by cross-checking against millions of government records. Employers who voluntarily adopt the program reasonably assume reliance on it satisfies their obligations under immigration law (as an additional back-stop to the Form I-9 onboarding process).

The Maine case suggests otherwise. By branding reliance on E-Verify as “reckless,” DHS sent a message that employers cannot simply accept the system’s results at face value. This contradiction leaves businesses in a confusing and precarious situation: too much reliance on the system risks liability but ignoring it invites penalties.

The same paradox was evident in Nebraska earlier this year when ICE raided a meatpacking plant despite the company’s use of E-Verify. In an article published in AP News, the company president asked, “This is your system, run by the government. And you’re raiding me because your system is broken?”

A Brief History of E-Verify

E-Verify began in the 1990s as a pilot program under President Clinton. It was expanded nationwide in 2004 and given its current name during President George W. Bush’s push for comprehensive immigration reform. While broader immigration reform collapsed in the face of political opposition, E-Verify survived as a compromise measure.

In 2008, the Bush Administration issued an executive order requiring all federal contractors to use E-Verify. Subsequent administrations have taken differing views. President Obama encouraged voluntary use but stopped short of a federal mandate. President Trump touted E-Verify as a key enforcement tool while simultaneously questioning its reliability — a tension that persists today.

Ten states have since made the program mandatory for all or most private employers. Elsewhere, participation remains voluntary, though more than 1 million employers in the United States are now enrolled.

Known Weaknesses in the E-Verify System

Document Fraud

E-Verify is only as strong as the documents presented. If an unauthorized worker presents genuine identity documents belonging to another authorized individual, the system may approve them. This loophole is one of the most frequent criticisms raised by business and legal experts.

False Negatives and False Positives

For authorized workers, the risks are also real. Studies suggest that over a 10-year period, more than 130,000 U.S. citizens and lawful residents were wrongly denied employment due to erroneous E-Verify results. Although DHS reports substantial improvements, even a small error rate affects thousands of prospective employees when tens of millions of checks are conducted annually.

Employer Discretion and Liability

Employers walk a fine line. They are not expected to be “document detectives,” but they must exercise reasonable judgment when reviewing original I-9 documentation submitted by employees – especially Social Security Cards.

Overzealous questioning and/or refusal to accept what otherwise appears to be completely legitimate documentation because of “suspicions of falsity,” however, risks claims of discrimination against the employer under the Immigration and Nationality Act’s anti-discrimination provisions.

Legal Risks Beyond E-Verify

E-Verify participation does not immunize employers from liability. ICE may still pursue penalties under theories of constructive knowledge if an employer “should have known” that a worker lacked authorization (e.g., the employer should have known submitted documentation was not legitimate).

Similarly, I-9 audits often focus on whether the employer followed proper document review procedures, regardless of what E-Verify showed. Therefore, employers who rely solely on electronic confirmation through E-Verify without adequate training or internal safeguards risk exposure not only to fines but also to reputational damage from publicized enforcement actions.

Policy and Legislative Debate

E-Verify must be reauthorized every two years. Some in Congress — particularly Republican lawmakers — have sought to make the program permanent and mandate its use nationwide. Senator Joni Ernst recently described it as a “proven, cost-effective way” to ensure compliance and deter unauthorized employment.

But critics argue a national mandate would be devastating for industries dependent on immigrant labor. The Texas Association of Business, for example, has consistently opposed state-level mandates, warning of significant labor shortages. Civil libertarians also warn that strengthening E-Verify would, as a logical next step, require a national biometric ID card — an idea viewed as politically infeasible and invasive on both sides of the political spectrum.

Practical Guidance for Employers

Given these uncertainties, employers should treat E-Verify as one tool in a broader compliance strategy, as follows:

1. Maintain robust I-9 procedures. Conduct timely completion and internal audits of I-9s, ensuring employees are trained to identify proper forms of original documents and to better recognize common document irregularities.
2. Document good-faith reliance. Keep records demonstrating compliance with both I-9 and E-Verify, showing that the company attempted to exercise best practices and to follow procedures in good faith.
3. Provide staff training. HR personnel should understand how to use E-Verify and how to avoid discriminatory practices when handling tentative non-confirmations.
4. Monitor system updates. Stay current on DHS changes to E-Verify policies and guidance, which can shift rapidly depending on political priorities.
5. Seek legal advice early. In the event of an ICE audit or raid, consult immigration counsel promptly to manage risk and preserve options.
6. Balance vigilance and fairness. Employers must remain cautious not to demand excessive documentation or single out individuals based on appearance, accent, or national origin.

Conclusion

The Maine police department case illustrates the hazards of relying solely on E-Verify in today’s shifting enforcement environment. Employers are required to confirm work authorization, yet the very system designed for that purpose is now being criticized by its own DHS representatives in the Trump Administration.

Until Congress resolves the contradictions and clarifies the scope of employer responsibility, businesses should approach E-Verify as necessary but insufficient on its own, and supplement it with strong compliance policies, staff training, and legal oversight.

If your company has questions about how to comply with immigration policy or to discuss their current procedures, please contact the author of this article.