E-Verify is an online employee verification system administered by the Social Security Administration (SSA), U.S. Department of Homeland Security (DHS), and U.S. Citizenship and Immigration Services (USCIS). The purpose of this program is to allow businesses in the United States that are hiring a paid employee to have an additional safeguard for verifying that the new-hire is in fact legally eligible to work in the U.S.
Why should employers care about E-Verify?
Every employer in the United States must complete a Form I-9 for each of its paid employees. The E-Verify system aids employers in submitting proper Form I-9s while preventing the hiring of individuals who are not authorized to work within the United States.
Simply put: Employing workers without a properly completed I-9 could lead to a plethora of problems, including significant fines to your organization of up to $2,191 per improperly filed Form I-9. Across an organization of hundreds or thousands of employees, you could be looking at hefty fines of hundreds of thousands of dollars.
Is E-Verify Mandatory?
E-Verify is only mandatory for certain Federal Contractors, and in some states. Here’s a helpful overview of E-Verify Laws by State. Nonetheless, E-Verify has become popular as an additional safeguard for companies across the U.S. to maintain a legal workforce and lessen instances of fraudulent documentation submissions.
As of November 30, 2012, a total of 20 states required the use of E-Verify for at least some public and/or private employers: Alabama, Arizona, Colorado, Florida, Georgia, Idaho, Indiana, Louisiana, Michigan, Mississippi, Missouri, Nebraska, North Carolina, Oklahoma, Pennsylvania, South Carolina, Tennessee, Utah, Virginia, and West Virginia.
History of E-Verify
The year is 1986. Scenes from Ferris Bueller’s Day Off and Top Gun may flash into your mind, but this year also saw an enormous change for the future working generations of the United States. In November of 1986, Ronald Reagan signed the Immigration Reform and Control Act of 1986 (IRCA) which required employers to examine documentation from each newly hired employee to prove his or her identity and eligibility to work within the United States. This Act served as the cornerstone for the creation of the Form I-9 and future employment verification processes.
The U.S. government took the second step toward employee workplace eligibility compliance in September of 1996. A second Act - The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 required the then Immigration and Naturalization Service (INS, now a part of DHS) to conduct three distinct pilot programs for determining the most effective method in verifying an employee's employment documents.
From 1996 to 2004, the Pilot Program saw voluntary implementation across California, Florida, Illinois, Nebraska, New York and Texas. It’s here that for the first time, information from the employee's Form I-9 began to be compared to the information in INS and SSA records. By late 2004, the program was entirely online.
In 2007, the program was renamed to what we know of today as E-Verify while the other two programs launched by the government were discontinued. This year also marked an additional step in the employee verification of photo matching, which continues to be utilized today. This step was developed for employees presenting a Permanent Resident Card or Employment Authorization Document, and allows the employer to match the photo on an employee's document with the photo in USCIS records.
Just a year later in 2008, USCIS and Immigration Customs Enforcement (ICE) entered into a bilateral agreement which granted privileges to shared data. From this year moving forward, misuse, abuse, or fraudulent use of E-Verify is now regulated and monitored by ICE.
In 2011, E-Verify launched the Records and Information from DMVs for E-Verify (RIDE) program. RIDE enables states to validate the authenticity of driver’s licenses presented as Form I-9 identity documents. In order to ease the process on employers, E-Verify launched “Self-Check” service which allows individuals to self-check their employment eligibility in the United States. As of December of 2018, this service is available in 21 states.
Popularity and use of E-Verify continues to grow every year. In 2008, USCIS reported a figure of around 88,200 employers using E-Verify. As of December 2018, nearly 750,000 employers use E-Verify.
Federal and ICE Audits
U.S. Federal Agencies, including the U.S. Immigrations and Customs Enforcement (ICE), conduct thousands of employment eligibility inspections each year. These inspections typically include a robust audit of a company’s Form I-9s to ensure proper filing and maintenance.
I-9 inspections, which may be targeted as a result of anonymous leads and tips, begin with a federal or ICE agent serving an employer with a Notice of Inspection (NOI). When an employer receives an NOI, the employer is typically given three days (72 hours) to respond to the agent’s requests, which will likely include the request to view all or a portion of the employer’s Form I-9s. Therefore, it is critical for employers to regularly conduct I-9 self-audits, and engage in diligent and systematic training of human resources personnel to ensure proper protocol in the event of an audit.
In 2018, Immigration and Customs Enforcement (ICE) served more than 5,200 NOIs, compared to 1,360 in 2017. This significant increase in audits is consistent with the Trump administration’s continued focus on immigration enforcement. We can expect the number of annual I-9 audits to increase in 2019.
E-Verify and the Form I-9 are separate steps in an employee verification process. Instances have occured when employers have E-Verified an employee and then disregarded or discarded the Form I-9, making the assumption that both steps would be unnecessary or redundant. This is a major red flag and leaves companies prone to fines by federal agencies. The Form I-9 and E-Verify are separate processes that must be documented independently of one another.
E-Verify may confirm that an employee is eligible for work, but keep in mind it is not a replacement for the Form I-9. In addition, E-Verify may return a status of “Authorized to Work” (see E-Verify Case Results below) but portions of the employee’s Form I-9 may still remain non-compliant to federal regulations and thus remain prone to fines conducted in an audit.
As of December, 2018, fines by ICE range from $220 to $2,191 per Form I-9.
Pros of E-Verify
- In most cases, E-Verify helps companies steer clear of hiring an individual who is actually not eligible to work within the United States, and therefore avoid potential federal fines.
- Due to the growing popularity of this program, E-Verify has the potential to become mandatory for employers across the nation. By embedding this step in all employee verification processes, employers are able to become more accustomed to the expectations/requirements of the program and stay ahead of the curve.
- E-Verify can easily be included as an automated step within your HRIS Management or ATS platform. Tracker is a proud partner of E-Verify and makes integration with E-Verify seamless through a simple API.
Cons of E-Verify
- E-Verify serves as a direct line into the U.S. government’s citizenship database. By submitting new-hire information, the U.S. government has the capability to catch employers making mistakes (intentional or otherwise) in the employee verification process. Information from Form I-9s consistently not submitted by the third business day after a new hire's first day of work to E-Verify serves as potential ground for audits and potential fines. In other words, there are strict guidelines and timelines put into place to help protect your workforce, but it can often be difficult to adhere to all timeline and data requirements.
- The E-Verify system is not perfect. Cases have occured where TNC’s (Tentative Non-Confirmations) and FNC’s (Final Non-Confirmations) occurred for an individual who was authorized to work. Those authorized to work may also encounter TNC’s and FNC’s.
- E-Verify may expose employers to legal risks. Employees can sue for discrimination if employers do not provide proper notice of or appropriate assistance with TNC’s.
- Training employees and manually managing the E-Verify process can take time. Keep costs for labor in mind for this process and consider automated Form I-9 solutions.
- Although rare, government shutdowns can cause issues with the E-Verify system. In a government shutdown, the E-Verify platform is technically shut down as well. Employers manually entering new-hire info must await E-Verify’s active status before finally submitting all of the verification details. E-Verify.gov is typically flexible in the event of a shut down and allows employers a larger window of time to submit the information. In the event of a shutdown, please refer to information provided to you by E-Verify for system expectations.
How to get started with E-Verify?
You may choose to utilize E-Verify directly, in which case the first step is to enroll in E-Verify through the E-Verify Website by providing your business and contact information. After enrolling, you’ll have a direct link to the government database of employment authorized people within the U.S.
You may run a new-hire’s information through E-Verify only after an employee completes the Form I-9. The employer must verify the employment eligibility and identity documents presented by the employee and record the document information on the Form I-9.
Although the Form I-9 is only two pages long, this document has 100s of rules and is among the most heavily audited forms by the U.S. Government. For more information regarding the complex process of properly completing a Form I-9, consult your I-9 specialist or a platform specifically backed by an Immigration Law firm, such as Tracker Corp I-9 Solutions.
Great, I’m enrolled in E-Verify! Now what?
The ‘E-Verify Participation’ and ‘Right to Work’ posters found on E-Verify.gov must be posted at the company’s hiring location(s). If the posters cannot be displayed at the hiring location(s), they must be provided to an employee in an alternative manner.
From here, any time you have a new hire, you must go onto the E-Verify Website and confirm employee eligibility of the individual. E-Verify must only be run once after a Form I-9 has been completed and an offer of employment has been made and accepted, but no later than the third business day after the employee begins to work.
*Be sure to E-Verify all individuals. Being selective with the process is grounds for federal intervention and potential fines.
E-Verify Case Results
Once you run E-Verify, multiple results, or cases can be returned to you. Complete details on steps to be taken for these cases can be viewed on the E-Verify Website here. The summarized cases are as follows:
Employment Authorized - Congratulations, the employee’s information matched records available to SSA and/or DHS. The employee is authorized to work for pay within the United States.
Verification In Process - This case was referred to DHS for further verification. DHS will respond to most of these cases within 3 federal government working days. No action is required by either you or the employee at this time, but you can check E-Verify daily for a response.
Tentative Nonconfirmation (TNC) - Information did not match records available to SSA and/or DHS. Additional action is required. Each agency may have separate reasons for the TNC.
The employer must:
Download and print the Further Action Notice and confirm whether the information listed at the top is correct
Privately notify employee of the TNC
Have employee review and confirm whether the information listed at the top is correct
Instruct the employee to indicate his or her decision to take action or not and to sign and date the Further Action Notice
Provide the employee with a copy of the signed Further Action Notice in English (and a translated version, if appropriate)
Keep the original signed Further Action Notice on file with Form I-9
The employee must:
Confirm if the information on the Further Action Notice is correct
Decide whether to take action to resolve the TNC or not and indicate choice on the Further Action Notice
Acknowledge the TNC case result by signing and dating Further Action Notice
Depending on the decision of the employee, further action may need to be taken to contact DHS and SSA to resolve the TNC.
Employers may not take adverse action against an employee because the employee received a TNC.
Case in Continuance - The employee has visited an SSA field office or contacted DHS, but more time is needed to determine a final case result. The employer may still not take adverse action against an employee because of the TNC while SSA or DHS is reviewing the employee’s case.
Close Case and Resubmit - SSA or DHS is unable to process the case and confirm eligibility. This 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 visited SSA or contacted DHS. The employer may terminate employment based on a case result of Final Nonconfirmation.
Can I automate E-Verify?
Yes, various ATS, HRIS, and standalone I-9 vendors will integrate with E-Verify.gov, thus once the Form I-9 process is completed, E-Verify can immediately check the given information on the form against the E-Verify database - this process, if properly set up, will take only seconds.
Tracker Corp specializes in I-9 Remediation and Management and is a proud E-Verify partner, ensuring seamless E-Verify integration and automation. Backed by an award-winning Immigration Law Firm, Tracker is the only I-9 Suite with a perfect 15+ year track record of zero client fines in federal and ICE audits.
Have questions about E-Verify?
Tracker specializes in Form I-9 Compliance and E-Verify.
Other Helpful Sources:
Official E-Verify Website.