All about E-Verify

by Protima Daryanani

Since 1986, employers in the United States have been required to confirm work authorization and verify the identity of their employees whether they are US citizens or foreign nationals. To do so, employers and employees must complete the Form I-9, Employment Eligibility Verification—which has recently been revised and updated—within the first three business days of the commencement of employment. E-Verify, launched in 1997, was created to add another level of verification. E-Verify is a voluntary (for most) and free, Internet-based system that compares information from an employee's Form I-9 to data from the US Department of Homeland Security (DHS) and Social Security Administration (SSA) records to confirm employment eligibility. Over 600,000 companies are currently enrolled in E-Verify with more than 1,400 new participating companies every week.

How does E-Verify work?

To enroll, employers must accept and electronically sign the “E-Verify Memorandum of Understanding for Employers (MOU)” which details the responsibilities of the SSA, the DHS, and the employer. In addition, all E-Verify users must agree to and follow the guidelines and user responsibilities outlined in the MOU and the manual. Employers should ensure that users are prepared and capable of using E-Verify properly. Misuse of E-Verify may lead to legal liability for both employers and users. Enrollment in the E-Verify system is done through the program’s website. Employers should consult the employer checklist before starting the enrollment process to ensure all necessary information is readily available.

Employers who participate in E-Verify must:

Follow E-Verify procedures for all newly hired employees while enrolled and participating in E-Verify;

Notify all job applicants of E-Verify participation;

Clearly display the “Notice of E-Verify Participation” and the “Right to Work” posters in English and Spanish and may also display the posters in other languages provided by DHS;

Complete Form I-9 for all newly hired employees before creating a case in E-Verify;

Obtain a Social Security number (SSN) from all newly hired employees on Form I-9;

Ensure that Form I-9 “List B” identity documents have a photo (Section 2.1);

Create a case for all newly hired employees no later than the third business day after they start work for pay;

Provide all employees with notice of and the opportunity to contest a Tentative Nonconfirmation (TNC);

Ensure that all personally identifiable information is safeguarded; and

Enter the employee’s e-mail address in E-Verify if it was provided on Form I-9.

Employers participating in E-Verify must not:

✗ Use E-Verify to pre-screen applicants for employment;

Create an E-Verify case for employees who were hired before the employer signed the E-Verify MOU;

Take adverse action against employees based on a case result unless E-Verify issues a Final Nonconfirmation;

Terminate any employees during the E-Verify verification process, because they received a TNC;

Specify or request which Form I-9 documentation newly hired employees must use;

Use E-Verify to discriminate against any job applicants or new hires on the basis of their national origin, citizenship, or immigration status;

Selectively verify the employment eligibility of newly hired employees; or

Share any user ID and/or password.

Once employers create an account, the company may begin to use E-Verify to confirm the information provided on the I-9 Form. Employers must submit the employee information on E-Verify within three business days, or else provide a valid reason for why this was not done. E-Verify compares the information to records readily available to the DHS such as US passport and visa information, immigration, naturalization, and SSA records.

If the information submitted matches, employers will receive an “Employment Authorized” result almost immediately. Occasionally, E-Verify cannot instantly confirm employment authorization and an E-verify representative will need to manually review the government databases. For those cases requiring manual review, E-Verify will first return a "DHS Verification in Process" response, and will then usually provide an initial verification result within twenty to forty-eight hours.

If the information does not match, the case will receive a “Tentative Nonconfirmation” (“TNC”) result. A TNC response means that the SSA and/or the DHS could not confirm that the employee's information matches government records. It does not mean an employee is unauthorized to work or is an undocumented immigrant as there are legitimate reasons why an employee may receive this result. If a TNC is received, US Citizenship & Immigration Services (USCIS) recommends a course of action, including verifying details submitted are accurate as well as other steps that can be taken to notify the foreign national employees.

To complete the E-Verify process, every case must receive a final case result and then be closed. One of three scenarios result in a final case result:

  1. “Employment Authorized;”
  2. “Final Nonconfirmation” from SSA or DHS is received when E-Verify cannot verify an employee’s employment eligibility after an employee has visited a SSA field office or contacted DHS during the TNC referral process. Employers must close the case once an “SSA or DHS Final Nonconfirmation” has been provided. The employer may terminate employment based on a case result of “SSA or DHS Final Nonconfirmation;” or
  3. “DHS No Show,” which means that the employee did not contact DHS within eight working days and is considered a Final Nonconfirmation. Employers must close E-Verify cases when they receive a Final Nonconfirmation. Employers may terminate employment based on a case result of “DHS No Show.”

As an employer, am I required to use E-Verify?

The short answer is: it depends. Form I-9 is mandatory for all employers; however, enrollment and use of E-Verify is voluntary for most businesses. Certain states like Alabama, Arizona, and Mississippi require mandatory use of E-Verify for all employers. Other states require mandatory use of E-Verify for certain employers, and certain state or local government offices require employers to participate in E-Verify to win certain contracts.  For example, in Nebraska, the requirement is for all state and local governments and contractors to use E-Verify, whereas in Tennessee, all employers with at least six employees are required to use E-Verify. On the other end of the spectrum, some states, like California, prohibit state municipalities from passing mandatory E-Verify mandates.

What are the advantages to using E-Verify?

The most obvious advantage to using the E-Verify system is the protection it potentially provides, not only for the workforce in general, but for the individual companies as well. E-Verify allows companies to detect when new hires give false information which protects the company from liability in the event of an audit. This may provide some peace of mind for employers about their workforce. Further, companies that use E-Verify establish a “rebuttable presumption” that they did not knowingly hire an unauthorized worker. While this will not prevent potential fines for the company, the employer cannot be charged with more serious crimes associated with a “knowing hire” of an employee without work authorization. For those who believe E-Verify will some day be mandatory, signing up now would allow employers to become familiar with the system ahead of any mandatory registration. Prospective users may be pleased to know that according to USCIS, E-Verify is one of the federal government’s highest-rated services for customer satisfaction.

What are the disadvantages to using E-Verify?

E-Verify is not a perfect system. It is susceptible to mistakes like any other major online computer system. Names changes, typos, and other modifications can lead to false “Tentative Nonconfirmations.” If these are received, the employee must update and correct the information within eight business days. False “Employment Authorized” results are possible as well. Moreover, it can be difficult to detect identity theft when the information provided by the employee is accurate, but it does not belong to that individual. Lastly, voluntarily enrolling in E-Verify requires additional information that is not required on the Form I-9, such as a Social Security Number or photo identification. This, some argue, would make a company more vulnerable to an audit as the government would have much more information about employees of the company. While E-Verify is free, employers must consider the cost of training their workers in using the E-Verify system.

For certain companies—or when, of course, required by law—E-Verify may be the right choice. For those considering using E-Verify, it may be best to consult with an immigration attorney and employment lawyer before enrolling. As more and more government agencies move toward online programs and electronic verification, it’s possible the paper days of the I-9 might be limited. The future may belong to such programs as E-Verify. Get ready.