In order to be legally allowed to work in the United States, an individual must be a U.S. citizen or have proper permission from U.S. authorities to work in the country. Employers are the ones who are responsible for verifying that a prospective employee is legally allowed to work in the United States. To that end, they can use E-Verify as an electronic system to compare an employee’s Form I-9 to data from the Department of Homeland Security (DHS) and the Social Security Administration (SSA). E-Verify protects employers from civil and criminal penalties relating to the hiring of undocumented workers, but they need to ensure proper completing, maintaining, and submitting forms through the employee verification network provided by U.S. Immigration and Customs Services (USCIS). To take advantage of this system and electronically confirm the employment eligibility of their employees, it is important for employers to fully understand this electronic system. The following overview answers the question, “What is E-Verify?”
The History of E-Verify
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 created E-Verify as a pilot program, implemented as a voluntary program in California, Florida, Illinois, Nebraska, New York and Texas. Ever since, E-Verify has been repeatedly renewed by Congress, subsequently expanded and is now available in all 50 states.
By law, E-Verify is mandatory for the federal government, as well as federal contractors and subcontractors. As of January 1, 2021, E-Verify became mandatory in Florida and the following states require E-Verify for some or all employers: Alabama, Arizona, Colorado, Florida, Georgia, Idaho, Indiana, Louisiana, Michigan, Minnesota, Mississippi, Missouri, Nebraska, North Carolina, Oklahoma, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Virginia and West Virginia.
How E-Verify is Used
E-Verify exists to strengthen the Form I-9 employment eligibility verification process that all employers must follow. While participation in E-Verify is voluntary for most employers, completion of Form I-9 is mandatory.
There are two exceptions to Form I-9 requirements that employers who use E-Verify need to follow:
- E-Verify cannot be used for employees who do not have SSNs. SSN on Form I-9 is voluntary. If an employee has a pending SSN application with Social Security Administration and meets the work requirement, the employee should be permitted to work until the SSN is received. After the receipt of the SSN, a manual E-Verify case can be created to verify the work authorization status and take the next appropriate action.
- Any List B document that employees present must contain a photo. Unless employers participate in E-Verify, some List B documents without photos are acceptable.
How E-Verify Works
Employer submits the information on Form I-9 to the E-Verify website. In the case of an electronic I-9 management system, I-9 would automatically integrate with the E-Verify website and would generate one of the statues below.
- Employment Authorized: The employee’s information matched records available to DHS and/or SSA.
- E-Verify Needs More Time: This case was referred to DHS for further verification.
- Tentative Nonconfirmation (Mismatch): Information did not match records available to DHS and/or SSA. Additional action is required.
- Case in Continuance: The employee has contacted DHS or visited an SSA field office, but more time is needed to determine a final case result.
- Close Case and Resubmit: DHS or SSA requires that you close the case and create a new case for this employee. This result may be issued when the employee’s U.S. passport, passport card, or driver’s license information is incorrect.
- Final Nonconfirmation: E-Verify cannot confirm the employee’s employment eligibility after the employee contacted DHS or visited SSA.
What is E-Verify Photo-Matching?
E-Verify enables matching the employee’s photo on the document presented as a List A: Employment Authorization Document (EAD) Card; Permanent Resident Card (Green Card); US Passport or US Passport Card; with the photo that USCIS has on file for that employee enabling instant detection of document fraud. If the photo matches and an employer selects “Yes” on the screen, notice of “Employment Authorized” will be displayed on the screen. If an employer selects “No,” stating that the photo on the ID presented by the employee does not match the photo displayed on the screen, it may result in DHS Tentative Nonconfirmation (TNC) or SSA Tentative Nonconfirmation (TNC).
**Do not compare the photo displayed by E-Verify to the actual employee. Employers should have directly compared the photo on the document to the employee during Form I-9 completion and prior to creating the E-Verify case.
What is E-Verify Tentative Non-Confirmation?
Once the information from Form I-9 has been entered and submitted, E-Verify compares it against millions of government records. The employer either receives a notification that their employee is authorized to work or, if the information the employee provided does not match the information in the government’s databases, the employer receives a Tentative Non-Confirmation (TNC).
Employee must tell the employer their decision by the 10th
federal government working day after E-Verify issued the mismatch result.
The employee has 8 federal government workdays from the referral date to visit or call the appropriate agency to start to resolve the discrepancy.
If they fail to contest the TNC or the TNC is contested unsuccessfully, then it is converted into a Final Non-Confirmation (FNC) and the employee is deemed ineligible to work. Employers may terminate an employee based on E-Verify only after they receive a Final Non-Confirmation.
What E-Verify Does Not Do?
E-Verify is not a system that provides immigration status. It also cannot be used for prescreening, and should not be considered a safe harbor from worksite enforcement.
COVID-19 pandemic and E-Verify Timeframes
To stay compliant with the necessary requirements, employers need to understand the E-Verify timeframe. At the onset of the COVID-19 pandemic in March 2020, E-Verify extended the timeframe for an employee to take action to resolve a TNC. However, E-Verify announced that starting July 15, 2022, employees whose E-Verify cases are referred to the SSA will have the normal eight federal working days to contact their local SSA office to begin resolving the mismatch. Therefore, for E-Verify cases referred on or after July 15, 2022, E-Verify will no longer provide extended timeframes for employees to visit SSA to resolve these mismatches. On the other hand, E-Verify cases referred between March 2, 2020, to July 14, 2022, with an SSA mismatch will still have an extended timeframe to be resolved.
New E-Verify Updates
E-Verify participation provides employers with different benefits, such as ensuring a legal workplace with workers verified as eligible to work in the U.S. To continue the program’s efficiency, in June 2022, E-Verify announced new features and updates:
- Extending the duplicate case lookback period to 365 days;
- Restricting users from creating duplicate cases;
- Better user management of duplicate cases;
- Searching cases by using a combination of multiple case fields at once;
- Viewing secondary case attributes without the need to navigate from the current page;
- Closing a case at the Scan and Upload stage of the case creation process; and
- Requiring users to download the Further Action Notice before referring a case.
The aim of the recently introduced changes is to help users avoid creating unintentional duplicate cases, provide them with a more robust case search capability, streamline the process to close a case and ensure following the correct procedures when processing TNC case results.
Benefits for Employers
E-Verify employers are presumed not to have knowingly hired unauthorized workers. Though, DHS does not consider using E-Verify to provide a “safe harbor” from worksite enforcement. Additionally, E-Verify participation removes the burden from the employer to determine the authenticity of the documents presented and can also reduce the number of unauthorized workers employed.
However, depending on the particular circumstances and the type of business, E-Verify may or may not be a good choice for some employers. Thus, before enrolling, they should consider conducting an internal Form I-9 audit, review their current procedure for employment verification and consider possible E-Verify benefits.
Either way, employers are obliged to ensure compliance with immigration regulations and conduct proper Form I-9 administration, especially in light of the uncertainty and changing regulations caused by the impact of the pandemic. To simplify this, they can streamline Form I-9 management and ensure a legal workforce while reducing errors and eliminating paperwork. Thus, they minimize risk exposure, stay prepared for possible audits and are fully compliant with changing Form I-9 regulations as well as E-Verify requirements.