E-Verify: Check US Employment Eligibility

The E-Verify system adds an extra layer of protection for US employers to ensure that they are only employing those lawfully permitted to work in the USA. It also means that employers can take advantage of the remote examination procedure permitted by E-Verify.

The following practical guide looks in detail at what the E-Verify electronic confirmation system is and how this works in practice in the context of verifying someone’s eligibility to work in the US.

 

What is E-Verify?

E-Verify, also known as eVerify, is a web-based confirmation system that allows participating employers to confirm the eligibility of new-starters to work in the United States. Under this system, E-Verify enrolled employers can verify the identity and employment eligibility of new recruits by electronically matching information given by employees on the employee’s Form I-9, Employment Eligibility Verification, against online records available to the Department of Homeland Security (DHS) and the Social Security Administration (SSA).

Form I-9 is the paperwork that must be completed to enable US employers to meet the mandatory legal requirement to verify a person’s right to work prior to hiring them. Any failure to comply with the criteria for completing Form I-9, or violation of the verification process, can result in significant penalties for the employer under federal law.

 

Do US employers need to use E-Verify?

The employment eligibility verification process by way of Form I-9 came into force in 1986, when employers were required by law to verify the identity and employment authorization of new hires under the Immigration Reform and Control Act. To improve the accuracy and integrity of this verification process, E-Verify was introduced in 1996.

In most cases, E-Verify is voluntary, although employers with federal contracts containing the Federal Acquisition Regulation E-Verify clause are required to enroll in this system as a condition of federal contracting. Employers may also be required to participate in E-Verify if state-legislation mandates its use, such as a condition of business licensing.

However, even where E-Verify is not mandatory, it strengthens the Form I-9 employment eligibility verification process that all employers, as a matter of law, must follow. By adding E-Verify to the existing Form I-9 process, employers can benefit from knowing they have taken an extra step toward maintaining a legal workforce. E-Verify is free to use and is available to participants in all 50 US states. It is also available in the District of Columbia, Puerto Rico, Guam, the US Virgin Islands and Commonwealth of Northern Mariana Islands.

 

How does the E-Verify system work?

As part of the recruitment process, both the employer and employee will be required to complete Form I-9, where this paperwork must be completed for every individual hired to perform labor or services in return for remuneration, regardless of their nationality or immigration status. This includes both US citizens and overseas nationals.

Form I-9 comprises two main sections, where all employees must complete Section 1 of the form no later than the first day of paid employment. Section 2 of the form must then be completed by the employer, or by any authorized representative on the employer’s behalf, within 3 business days following the employee’s first day of work.

In Section 1, the employee must provide their personal information and attest to their employment authorization. They must also give the employer acceptable documentation as evidence of their identity and legal entitlement to work. The employer, or any authorised representative, must carefully examine this documentation to determine whether it relates to the person presenting it and reasonably appears to be genuine, before recording the document information on the employee’s Form I-9 under Section 2.

At this stage, if an employer participates in E-Verify, they can double check the information given by the employee. As a web-based verification companion to Form I-9, E-Verify allows an employer to easily verify the identity and eligibility of new-starters to work in the US by matching their Form I-9 information against records held by government agencies.

If the employer participates in E-Verify, they may also be eligible to remotely examine an employee’s documentation under the alternative procedure authorized by the DHS. Employers must still complete Form I-9 for each newly-hired employee in the US, but the employee’s documentation does not have to be reviewed in their physical presence.

 

E-Verify remote-checking

When enrolled in E-Verify, the employer, or any authorized representative on their behalf, can complete certain steps to remotely examine Form I-9 documents. These include:

• asking the employee to transmit a copy of their Form I-9 documentation to the employer and to provide their social security number in Section 1 of Form I-9
• examining copies of both the front and back of Form I-9 documents, or any acceptable receipt, to ensure that this documentation reasonably appears to be genuine
• conducting a live video interaction with the employee, requiring them to present the same documentation during the live interaction to ensure that this relates to them
• indicating on Form I-9, by completing the corresponding box, that remote rather than physical examination of an employee’s documents has been completed
• recording key details on Form I-9 relating to the document(s) examined, including the document title, the issuing authority, any document number and any expiration date
• signing a declaration stating that they have examined the documentation presented by the employee, that this appears to be genuine and to relate to the employee named and, to the best of their knowledge, the employee is authorized to work in the United States
• retaining a copy of the identity and employment authorization documentation for the employer’s records where, in the event of a Form I-9 audit by federal government officials, both Form I-9 and copies of the documentation presented by the employee for document examination in the verification process must be made available.

 

How to use E-Verify

To use E-Verify, after completing Form I-9 for an employee, the employer must create a case in the E-Verify system that includes information from Sections 1 and 2 of Form I-9. After creating the electronic case, the employer should receive a response from E-Verify within a matter of seconds regarding the employment authorization of the employee.

If E-Verify provides a response indicating a “tentative nonconfirmation” (TNC), this does not necessarily mean that the employee is unauthorized to work in the United States, but rather that E-Verify is unable to confirm the employee’s authorization to work at this stage. In the case of a mismatch, the employer must notify the employee with a Further Action Notice.

If the employee wants to take action to resolve a mismatch, they should contact either the DHS and/or SSA within the time provided, where E-Verify requires employers to provide employees with the chance to contest TNCs in all cases. The employer must also allow them to work without any delay or adverse action while they are contesting a TNC.

 

What are the E-Verify documents?

If the employer is enrolled in E-Verify, they can accept any Form I-9 document from the list of acceptable documents, or combination of acceptable documentation, but if the employee presents a List B and C combination, the List B (identity only) document must contain a photo. All documents with an expiration date must be unexpired, although documents automatically extended by the issuing authority should be treated by the employer as such.

The list of acceptable documents for E-Verify purposes is on page 2 of Form I-9, where employees can present either one selection from List A, or a combination of one selection from List B and and List C instead. Any documents from List A will establish both identity and employment authorization for the employee presenting it, while documents from List B establish identity only and documents from List C establish only employment eligibility.

In lieu of any of the acceptable documents set out in Lists A, B or C, an employee can instead provide the employer with an acceptable receipt. This could include a receipt for either a replacement of a lost, stolen or damaged acceptable document.

 

E-Verify List A documents

For E-Verify purposes, documents from List A can include a US passport, a Permanent Resident Card (a green card), a foreign passport with a temporary I-551 stamp, or an Employment Authorization Document (EAD) on Form I-766 containing a photo.

The employee will only usually need to produce one List A document, although more than one document may be needed to comprise an acceptable List A document. For example, for an employee temporarily authorized to work by reason of their nonimmigrant status, they will need both their passport and status-endorsed Form I-94 (Arrival/Departure Record).

 

E-Verify List B & C documents

For E-Verify purposes, documents from List B can include a driver’s license or a federal, state or local government-issued ID card, provided this has a photograph of the holder.

Documents from List C can include a social security account number card, so long as the card does not contain any work restrictions and is valid for employment. A List C document could also include an original or certified copy birth certificate bearing an official seal and issued by either a US state, county, municipal authority or territory.

 

Can the employer specify E-Verify documentation?

The employee must be allowed to select which documentation they will present from the list of acceptable documents for E-Verify purposes, where the employer, or any authorized representative on the employer’s behalf, must accept documentation that reasonably appears to be genuine and relating to the person presenting it. This is because, under anti-discrimination laws, employers cannot specify which documentation employees must present to either establish their identity or verify their employment eligibility.

This essentially means that employers are prohibited from specifying certain documents over others because of an employee’s citizenship, immigration status or national origin, requesting either more or different documents than are required to establish identity and verify employment eligibility. They are also not allowed to reject reasonably genuine-looking documents. By treating employees differently, this could expose the employer to a civil penalty for what is known in US law as unfair documentary practices.

 

What happens after an E-Verify check?

Once the documentation provided by the employee has been checked by the employer using E-Verify, and Form I-9 has been completed and signed by both the employer and employee, Form I-9 must be retained by the employer for 3 years after the date that the employee was hired, or for one year after employment is terminated, whichever is later.

Where the DHS-authorized remote procedure has been used, in contrast to when physical document examination is undertaken, copies of the documents(s) examined must also be retained. If the documentation is two-sided, a copy of both the front and back must be kept.

During the 3-year prescribed retention period and where requested, Form I-9, together with clear and legible copies of the documentation in connection with the employment eligibility verification process, must be made available for inspection by authorized government officials in the context of any audit or otherwise. This could be federal officials from either the DHS, Department of Labor or Department of Justice.

 

Can the E-Verify system be used selectively?

When using E-Verify, participating employers must follow certain procedures specifically designed to protect employees from any unfair employment actions, including:

using E-Verify for all new hires, including both US citizens and noncitizens, and not using the system selectively
not using E-Verify to prescreen applicants for employment or reverifying employees who have temporary employment authorization
not terminating or taking any other adverse action against an employee based on a mismatch response generated by the E-Verify system.

If an employer participates in E-Verify and they choose to offer the alternative remote procedure to physically examining Form I-9 documentation, they must do so consistently for all employees. This is because employers must not treat employees any differently based on their citizenship, immigration status or national origin, where offering different verification procedures for different staff may give rise to a risk of discrimination.

The only exception to a blanket remote approach would be where an employer adopts the alternative DHS-authorized procedure for remote-hires only, while continuing to apply physical examination processes to all employees working onsite or in a hybrid capacity.

 

Need assistance?

NNU Immigration are specialist US attorneys. We provide expert advice to employers on US immigration compliance, including auditing, training and consultancy services to help organizations meet their legal duties and avoid penalties. Contact us to discuss your organisation’s compliance needs.

 

E-verify FAQs

What is an e verify employer check?

An e verify employer check is where an employer participating in E-Verify is able to electronically match the information given by employees on their Form I-9, Employment Eligibility Verification, against relevant online records held by government agencies.

 

What does e verify check?

Using E-Verify, an employer can verify the identity and employment eligibility of their employees by electronically matching information on a new-starter’s employment eligibility verification form against records available to the Social Security Administration and the Department of Homeland Security.

This article does not constitute direct legal advice and is for informational purposes only.