OLD ORCHARD BEACH, Maine (AP) — The case of a Maine police officer arrested by immigration authorities even though he was vetted by a government system called “E-Verify” has raised questions about what employers can do to make sure they’re employing people who can legally work.

E-Verify is an online system that compares information entered by an employer from an employee’s documents with records available to the U.S. Department of Homeland Security and Social Security Administration. It’s used to determine the employment eligibility of citizens and noncitizens.

Assistant Secretary of Homeland Security Tricia McLaughlin accused Old Orchard Beach, Maine, of “reckless reliance” on the E-Verify program when it hired Jamaica national Jon Luke Evans, who was later detained and agreed to leave the country earlier this month.

But it’s the government’s own program. And experts say there’s not a whole lot more employers can do in terms of vetting.

“I think employers are between a rock and a hard place,” said Madeline Zavodny, an economics professor at the University of North Florida. “Even an employer who is trying to comply with the law can have difficulty doing it.”

What is E-Verify?

Before 1986, it was essentially legal for employers to hire people regardless of their immigration status. Then came the 1986 Immigration Reform and Control Act, which involved a large-scale immigrant legalization program that was paired with a requirement that employers no longer hire people who weren’t legally authorized to work in the U.S.

Employers then had to fill out a form called an I-9, which required workers to present documents showing that they were authorized to work. But it was difficult to verify if the documents were valid. As part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, the E-Verify system was established to help verify those documents.

Unlike I-9 forms, which are federally required for every employer, E-Verify is mandated on a state-by-state basis, otherwise it is voluntary. According to an Equifax tally, about 23 states require E-Verify for at least some public and/or private employers.

Zavodny said the system is generally accurate in terms of matching documents, but there are flaws. For example, if an employee’s right to work is revoked after it has already been verified — perhaps if their visa expires — it doesn’t automatically notify the employer.

A lack of biometrics also hinders the process. If there’s a photo in the E-Verify system, manual photo matching by the employer helps. But a lot of times, there’s no photo in the system.

And the system is not without critics. A 2021 review of E-Verify by the Office of the Inspector General concluded that until U.S. Citizenship and Immigration Services addresses the system’s shortcomings, “it cannot ensure the system provides accurate employment eligibility results.”

Trump pushed for more E-Verify use

The federal government’s disagreement with Old Orchard Beach over E-Verify’s reliability came despite pushes by President Donald Trump and his allies to bring the system into wider use. Project 2025, the blueprint for Trump’s second term, calls for it to be mandatory.

Use of the system isn’t widespread. About a fifth of U.S. employers use it, though some huge businesses do, including Walmart, Starbucks and Home Depot.

Language calling for mandatory nationwide E-Verify was dropped from budget proposals during the first Trump administration. The system has also faced criticism from some employers.

An Omaha, Nebraska, food packaging company owner said a raid of his business by immigration officials this year came despite his use of E-Verify for employees. Glenn Valley Foods owner Gary Rohwer said in June that the business “did everything we could possibly do” to hire eligible workers.

Rohwer didn’t respond to requests for comment this month. Old Orchard Beach officials declined to comment on the town’s recent troubles. DHS officials also didn’t respond.

Others say they’ve had good experiences with the system. Kyle Sobko, CEO of SonderCare, a Calgary, Alberta-based company that makes hospital beds for the home, has a staff of 50, including 20 in the U.S.

He uses E-Verify and said he hasn’t had any problems.

“We trust the system for its reliability and integration with our hiring process,” he said.

Sobko said the situation in Old Orchard Beach raises some concerns about the system’s limitations. But he doesn’t plan on making any changes since the warning about “reckless reliance” on E-Verify.

Experts say reliance is not reckless

Despite the system’s flaws, characterization of E-Verify use as “reckless” is an “outrageous” claim, said Kathleen Campbell Walker, a Texas attorney who is a former president of the American Immigration Lawyers Association.

Walker described the process as “not a get out of jail free card” for prospective employees, but as one that has evolved over the years and become more robust in its ability to provide accurate background checks.

Walker said McLaughlin’s description of “reckless reliance” on E-Verify should give employers pause.

“The whole idea is that I’m supposed to rely on E-Verify to show my good faith and to have a more secure workforce,” she said. “Not that reliance upon it is somehow irresponsible.”

Advocates for the rights of immigrants have said instances in which employees clear the E-Verify system but end up arrested by immigration officials anyway point to a broken immigration system.

“We have an immigration system that is not functioning to the extent that a federal system would both clear someone to work and at the same time, they could somehow get onto ICE’s radar,” said Molly Curren Rowles, executive director of the American Civil Liberties Union of Maine, referring to Immigration and Customs Enforcement.

Going beyond E-Verify can be risky

Small businesses are in a tough spot since they don’t necessarily have the resources or motivation to do more than what is required to verify employment eligibility status.

“Businesses should not be in the business of being the paperwork investigator for the federal government,” said Frank Knapp Jr., president & CEO of the South Carolina Small Business Chamber of Commerce. “The federal government ought to be doing that.”

Knapp has pushed back on his state’s mandate for E-Verify because he said it puts too much of the onus on small business owners.

“It’s an extra layer of administration just to do the E-Verify for small businesses, and the federal government is saying, oh, you do this because you want to verify that somebody is in this country legally,” he said. “But now their own administration is saying, ‘Oh, no, no. That’s not enough.’”

James M. Cooney, a labor and employment law expert in the Rutgers School of Management and Labor Relations in New Jersey, said it can be tricky to go beyond the basics of what’s required to verify identification without running the risk of a discrimination charge.

“If an employer tries to do more than what is permitted under the I-9 and E-Verify, that will very often be seen as illegal discrimination,” he said. “And so that really puts employers at a tough spot.”

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Anderson reported from New York.