What is an E-Verify hiring site or hiring location?

[Note: This article is based on a recent response to a specific employer. The opinion below may or may not apply to your specific circumstance.]

An employer conducts its hiring out of one location; that location being in a state that does not require E-Verify by state law. The employer has has no other offices, stores, etc. that it owns or controls, in any state, and at which employees are hired or work. The employer is not a federal contractor nor does it hold any public (government) contracts with any government agencies in its home state or elsewhere. The employer either has no or very few remote employees but is planning to hire an employee in another state in the near future. The employer does not employ any F-1 students in the STEM OPT program.

Under these circumstances, the employer is not currently required to participate in E-Verify.

Designating E-Verify hiring sites

Employers who enroll in E-Verify must designate at least one “hiring site” at which the employer agrees to verify new hires. A “hiring site” is a location that is owned and/or controlled by the employer. It is never the new hire’s residence but could be a principal’s home address if that location is the business’ “headquarters” or only physical address of record. Employers must name physical locations that it owns or controls because the MoU authorizes the USCIS, where necessary, to conduct on-site inspections to ensure compliance with the MoU and labor law; specifically, in relation to sponsored employment (H1B, etc.) or education-related employment (F-1). The employer would not be able to allow access at a location that it did not own or control.

The description of a “hiring site” at the USCIS site can be confusing and should not be interpreted strictly: “A hiring site is the location where the employer hires employees and they complete Form I-9.” Obviously, the intent is not to describe the employee’s residence, a coffee shop, or a friend’s house where the new remote hire physically completes the I-9. In fact, the rest of the referenced resource describes examples of physical locations that the employer owns or controls, not just any and every location where the I-9 is actually completed.

USCIS: https://www.e-verify.gov/e-verify-user-manual-for-corporate-administrators-20-company-location-administration-21 

USCIS: https://www.e-verify.gov/quick-reference-guide-for-e-verify-enrollment-10-introduction/14-verification-locations-and-hiring

Law and circumstances triggering the participation requirement

If an employer is not a federal contractor or employer of an F-1/OPT student, then participation in E-Verify is voluntary on the federal level. However, a number of states have passed laws that require participation in E-Verify under specific circumstances. The various state laws are sometimes similar but never identical; each state’s law must be examined to determine whether or not an employer is required to participate in E-Verify.

Many times, a state law will fail to clearly and adequately address all circumstances under which a business might employ someone within the state. For example, most state laws do not specifically address remote hiring, where an employer’s headquarters is not physically located in the state and does not operate a physical location within the state but does employ someone who works within the state. In those cases, whether or not an employer must participate is often determined by how the law is implemented or enforced. Sometimes, the requirement is tied to the definition of “employer” in the law.

For example, Georgia’s E-Verify law is enforced at the point that 1) a contractor submits a bid or responds to an RFP for a qualifying contract with a Georgia government agency at any level; or 2) when a private employer applies for a license or any occupational tax certificate (business license). A business may not be required to apply for a business license if it does not own or control a physical location within the state. Even if an employer operated a physical location within the state at which employees worked or were hired, it still would not be required to participate in E-Verify unless/until more than 10 full-time employees worked there.

Reference: https://www.gacities.com/Resources/GMA-Handbooks-Publications/City-Clerk-Handbook/E-Verify-Save.aspx

For the purposes of compliance with the E-Verify law in Arizona, an employer is defined as “any individual or type of organization that transacts business in this state, that has a license issued by an agency in this state and that employs one or more employees in this state.” “License” is also defined by the law. The requirement to participate in E-Verify applies to all employers as defined as well as to employers who receive an economic development incentive from a government entity.

Like the Georgia law, the Arizona E-Verify requirement kicks in for most employers when they apply for an occupational tax certificate or “business license” to operate a physical location with employees within the state.

https://www.azleg.gov/viewdocument/?docName=https://www.azleg.gov/ars/23/00211.htm

In North Carolina, the 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…” The definition of “employer” in North Carolina is a little more all-encompassing: “Any person, business entity, or other organization that transacts business in this State and that employs 25 or more employees in this State.”

Reference: https://www.labor.nc.gov/workplace-rights/e-verify/e-verify-frequently-asked-questions

NC statute: https://www.ncleg.gov/EnactedLegislation/Statutes/PDF/ByArticle/Chapter_64/Article_2.pdf

If the employer described above were to enroll in E-Verify, either voluntarily or because of a statutory mandate, it would be required to name it home office location as its only hiring site. Under the terms of the E-Verify Memorandum of Understanding, the employer would be required to verify all new hires, not just those hired in the states where E-Verify is required. Remember, the requirement to verify is determined by “hiring sites,” which must be physical locations.