E-Verify Requirements in Maryland: Employer Obligations

Federal law under 8 U.S.C. section 1324a requires all U.S. employers to verify the employment eligibility of every new hire by completing Form I-9 within three days of employment. The Immigration Reform and Control Act (IRCA) of 1986, enforced by the Department of Homeland Security (DHS), establishes this baseline requirement.

E-Verify is a voluntary federal electronic verification system operated jointly by DHS and the Social Security Administration (SSA). While most employers can choose their verification method (i.e., document review instead of E-Verify), certain employers are statutorily required to participate. Executive Order 12989, as amended, mandates that federal contractors and subcontractors use E-Verify for all new hires. Additionally, employers receiving certain federal grants, particularly in health care and transportation, may be required by their grant conditions to use E-Verify.

The EEOC enforces Form I-9 compliance, and employers who knowingly hire unauthorized workers face civil penalties ranging from $375 to $3,200 per violation, and criminal penalties for pattern violations. E-Verify itself is free to employers and provides immediate verification results in most cases.

Maryland does not have a state-specific E-Verify mandate for private employers. Maryland Code, Article 64, section 101 et seq. establishes general employment authorization requirements, but does not require participation in the E-Verify system as a condition of employment in the private sector.

Unlike some states (Arizona, Mississippi, South Carolina), Maryland has not enacted legislation requiring all employers or most private employers to use E-Verify. This means Maryland employers have discretion to verify work authorization through traditional document review methods listed on Form I-9 (such as passport, driver's license with Social Security card, or state ID) rather than using E-Verify's electronic database.

However, Maryland employers must still comply with federal Form I-9 requirements. The distinction is significant: federal law requires employment verification, but Maryland does not mandate the specific method of E-Verify. Where federal requirements apply—such as for federal contractors, recipients of federal transportation funding, or certain federally-funded health care providers—those federal E-Verify mandates supersede Maryland's silence on the matter.

Maryland employers who choose to use E-Verify receive no state-specific incentive or protection, though they do benefit from federal safe harbor provisions that limit liability under IRCA if they verify in good faith through E-Verify. Conversely, Maryland's lack of a state mandate means employers cannot face state-level penalties for non-participation in E-Verify, only federal penalties for I-9 violations.

E-Verify is not required for Maryland private employers unless they are federal contractors, subcontractors, or recipients of certain federal grants or funding. Employers in federally-funded health care, transportation, and emergency management programs may be mandated to use E-Verify by their specific grant agreements, not by Maryland law itself.

Small employers are not exempt from federal I-9 requirements, but the federal requirement to use E-Verify applies only to federal contractors and certain federally-funded programs. Maryland law provides no categorical exemption for small businesses from federal Form I-9 obligations, but also imposes no state-level E-Verify mandate as an additional burden.

Employers who verify using acceptable documents (such as original passport, state ID, or combination of Social Security card and driver's license) are meeting their federal obligations without E-Verify. E-Verify is an alternative verification method, not the exclusive lawful method, for private employers not under federal contract.

Immigration and Customs Enforcement (ICE) may conduct Form I-9 audits of any employer, regardless of federal contractor status, and penalties apply regardless of whether an employer used E-Verify, if I-9 violations are found. However, employers who used E-Verify in good faith have a federal safe harbor defense limiting liability, which employers using document-only verification do not possess.

Union employers are not exempt from I-9 or E-Verify requirements applicable to them.

Step 1: Document and Prepare. Maintain copies of all Form I-9 forms completed by current employees, including sections certifying identity and work authorization documents reviewed. Keep records of the dates forms were completed and the specific documents examined (passport number, driver's license number, Social Security card, etc.). If using E-Verify, save confirmation notices and case results. This documentation is critical if ICE conducts an audit or if you face allegations of knowingly hiring unauthorized workers.

Step 2: Internal Compliance Review and Correction. Conduct an internal audit of your I-9 files to identify any incomplete or improperly completed forms (missing signatures, undated entries, documents not listed). If you discover Form I-9 defects (missing information or incorrect document descriptions), you may correct errors in writing on the form in a timely manner to demonstrate good faith compliance. If you discover evidence that an employee is unauthorized, do not immediately terminate them; first consult an employment attorney to understand your legal obligations and exposure.

Step 3: Report to the Appropriate Agency. If you discover violations or receive notice of ICE investigation, contact the DHS Form I-9 Audit Unit. ICE conducts Form I-9 audits and issues Notices of Inspection directly to employers. There is no advance filing requirement unless you are a federal contractor subject to an audit notice. If you are a federal contractor and have not enrolled in E-Verify, enroll immediately through the E-Verify system at www.e-verify.gov. Federal contractors can be debarred from future federal work for failure to comply with E-Verify requirements.

Step 4: Understand the Investigation Process. ICE will issue a Notice of Inspection specifying which employee I-9s will be examined. You will typically have 3 business days to produce the requested I-9 forms. ICE will examine documents for completeness and validity. If discrepancies are found, you may have the opportunity to correct defects. The investigation can take weeks to months. Penalties are issued separately; civil penalties under IRCA range from $375 to $3,200 per violation (per improperly completed or missing I-9), and criminal penalties apply for knowing employment of unauthorized workers.

Step 5: Consult an Employment or Immigration Attorney. If you receive an ICE Notice of Inspection, are aware of I-9 violations, or suspect employees are unauthorized, consult an employment attorney with immigration law experience immediately. An immigration attorney can represent you in the audit process, review your I-9 files for defects, negotiate with ICE regarding penalties, and advise you on whether to use E-Verify prospectively as a cure. An employment attorney can advise on compliance with Maryland employment law if you terminate an employee based on work authorization issues.