I can’t tell you how many times I have heard, “We participate in E-Verify so we don’t need to worry about our Form I-9s, and we don’t need any Form I-9 training.” Nothing could be further from the truth. Participation in E-Verify is an “add-on” rather than a “replacement” to a sound Form I-9 process, and, in fact, E-Verify carries with it additional compliance requirements.
As noted in my last blog, it is only a matter of time before E-Verify becomes mandatory for all employers. However, before you rush out and join E-Verify thinking it is a panacea for all your Form I-9 woes, it is important to plan how your team will integrate E-Verify into your existing immigration compliance program. While E-Verify compliance is complicated and we don’t recommend jumping in without guidance from experienced counsel, below are a few points that all employers need to understand.
1. What is E-Verify?
E-Verify is a “free” and “voluntary” internet-based system, operated by USCIS (part of DHS), in partnership with SSA, that electronically verifies the employment authorization status of newly hired employees. Employers submit information from an employee’s Form I-9 to the system through a secure website and the system automatically searches for the information in two main databases – SSA and USCIS. If the system matches the submitted information with the databases, the employer is immediately notified that the worker is confirmed (98.3% receive confirmation within 24 hours). If E-Verify cannot confirm the data, employers receive a tentative nonconfirmation (TNC). Employers must follow specific procedures to allow workers to correct erroneous nonconfirmations.
2. E-Verify brings with it additional government scrutiny
The USCIS Monitoring and Compliance Branch was created in 2007 and is responsible for identifying E-Verify usage patterns that suggest identity fraud or employer misuse of the system. In addition, the E-Verify MOU requires that an employer agree “to cooperate with DHS and SSA in their compliance monitoring and evaluation of E-Verify, including by permitting DHS and SSA, upon reasonable notice, to review Forms I-9 and other employment records and to interview it and its employees regarding [the employer’s] use of E-Verify, and to respond in a timely and accurate manner to DHS requests for information relating to their participation in E-Verify.” The E-Verify MOU further provides that information given to DHS by the employer may be used “to enforce the Immigration and Nationality Act (INA) and Federal criminal laws.” By participating in E-Verify, the employer is regularly providing information to the government that could be used in a criminal investigation of the employer. USCIS has also entered into Memoranda of Agreement (MOA) with ICE and DOJ OSC for referring cases of suspected employer misuse of E-Verify and discrimination matters to ICE and DOJ OSC. USCIS will also provide those agencies with information regarding ongoing administrative and criminal investigations when requested.
3. How does E-Verify work?
Employers submit information provided on an employee’s Form I-9 in to the E-Verify website. The E-Verify system will return one of three results:
- Employment Authorized – the employee is authorized to work.
- SSA Tentative Nonconfirmation – there is an information mismatch in the SSA database.
- DHS Verification in Process – DHS will usually respond within 24 hours with:
- Employment Authorized or
- DHS Tentative Nonconfirmation
If the employee is Employment Authorized, employers record the result and close out the case in E-Verify to complete the Form I-9/E-Verify process. If the employee receives a TNC, however, the employer must follow specific detailed steps to resolve the TNC. Failure to follow the TNC process can result in significant penalties.
4. E-Verify timing
Employers must complete the Form I-9 prior to entering any employee information into E-Verify. Employers must enter the employee’s Form I-9 information into E-Verify for all newly hired employees no later than the third business day after the employees’ start date. If the employee does not have an SSN, the employer must note the Form I-9 and set it aside until the employee obtains an SSN. The employer will need to monitor and follow up with the employee and should create an E-Verify case once the employee has an SSN.
Once enrolled in E-Verify, employers are required to post certain notices in English and Spanish in an area visible to prospective employees (which may include the employer’s website):
- E-Verify participation
- DOJ OSC anti-discrimination notice
6. Additional Form I-9 process requirements
When an employer participates in E-Verify, the Form I-9 rules for that employer alter slightly. For example, if an employee presents a “List B” identity document during the Form I-9 process, E-Verify users may only accept it if it contains a photo. In addition, the E-Verify photo match tool allows the employer to match the photo on a document to the photo that DHS has on file for that employee, which helps to detect document fraud. As a result, if an employee chooses to provide one of the following documents, the employer is required to make a photocopy of the document and retain it with the Form I-9: (1) Employment Authorization Document (Form I-766); (2) Permanent Resident Card (“green card”) (Form I-551); or (3) U.S. Passport or Passport Card. The photocopy requirement exists for E-Verify users regardless of whether or not the employer photocopies and retains other documents presented during the Form I-9 process. The employer is also required to match the photo on the document with the photo provided through E-Verify.
7. Additional auditing requirements
Employers who participate in E-Verify should add E-Verify compliance to their regular Form I-9 audit schedule. The E-Verify component will determine whether the employer received the appropriate work authorization through E-Verify for all relevant employees and has stored confirmation of that authorization with the Form I-9. The E-Verify component will also focus on ensuring that the additional Form I-9 process requirements for E-Verify are being followed.