E-Verification and H-1B Visas: Can a Non-Verified Employer Apply and What Are the Implications?

For U.S. employers seeking to hire foreign workers under the H-1B visa program, the question of whether they are required to participate in the E-Verify system often arises. E-Verify is a government-mandated program that employers use to check the employment eligibility of their U.S. workers. However, not all employers are required to use E-Verify. This article explores whether a non-verified employer can apply for an H-1B visa and the potential implications of such a decision.

Can a Non-Verified Employer Apply for an H-1B Visa?

Yes, an employer who is not enrolled in the E-Verify program can still apply for an H-1B visa on behalf of a foreign worker. The U.S. Citizenship and Immigration Services (USCIS) does not mandate E-Verify participation for H-1B applications. However, there are several considerations and potential issues that may arise from not being a part of the E-Verify system.

Considerations and Potential Issues

E-Verify Participation: Although not a requirement for filing an H-1B petition, certain employers, particularly those who are federal contractors or subcontractors, may be required to use E-Verify as part of their contract obligations. This requirement is often stipulated in federal solicitations and contracts.

Potential Issues: While not being E-Verified will not directly affect the approval of the H-1B petition itself, it may affect the employer's credibility and perceived commitment to lawful hiring practices.

Impact on Employer Credibility

The USCIS may view employers who are E-Verified as more compliant with immigration laws, which could enhance their credibility in the eyes of adjudicators. This may indirectly affect the processing time or scrutiny of the H-1B application. Some adjudicators might favor applications from employers who have a stronger compliance record.

Future Compliance

Employers should be aware that the landscape of immigration compliance is constantly evolving. If the employer later becomes a federal contractor or if new regulations come into play that require E-Verify participation, they may need to enroll in the program to continue hiring foreign workers.

State Requirements

Some states have their own laws regarding the use of E-Verify, which could impact the employer's ability to hire foreign workers in those jurisdictions. Non-compliance with state-level E-Verify mandates may result in fines or other penalties.

Consequences of Choosing Not to Use E-Verify

While an employer can apply for an H-1B visa without being E-Verified, the decision should not be made lightly. The lack of participation in E-Verify may raise some concerns regarding compliance and credibility, which could indirectly affect the application process.

Conclusion

It is advisable for employers to consider enrolling in E-Verify to enhance their standing and streamline the hiring process for foreign workers. This proactive approach can mitigate potential issues and ensure smoother compliance with immigration regulations.

Remember, E-Verify is a tool for employers, not something that is done to them. It is a system that employers can use to check the employment eligibility of their U.S. workers, but its participation is not mandatory for all employers. If your employer is situated in a state that mandates E-Verify or if they work on government projects, participation may be required. If joining E-Verify is not a must, the employer is within their rights not to use the system. However, choosing not to participate does not guarantee a faster processing of visas.