Verify Employment Eligibility (E-Verify) – What Employers Need to Know
E-Verify was authorized by Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). It is a web-based system that employers can utilize which confirms the employment eligibility of employees. The program is administered by U.S. Citizenship and Immigration Services (USCIS). Currently E-Verify must be reauthorized by Congress, but there is proposed legislation to make the program permanent.
E-Verify is a voluntary program. However, employers with federal contracts or subcontracts that contain the Federal Acquisition Regulation (FAR) E-Verify clause are required to enroll in E-Verify as a condition of federal contracting. Employers may also be required to participate in E-Verify if their states have legislation mandating the use of E-Verify.
E-Verify must only be used to verify new hires, unless being used for federal contractors adding current employees to a federal contract with the FAR clause, and must be initiated after the employee accepts the position and within 3 days of the employee’s actual start date. E-Verify procedures must be applied to all new hires, regardless of citizenship status. E-Verify does not replace the completion of the Form I-9 process which verifies the identity and employment eligibility of new employees
To complete an E-Verify case, employers enter information taken from an employee’s Form I-9. The E-Verify system electronically compares that information to records available to the U.S. Department of Homeland Security (DHS) and the Social Security Administration (SSA). The employer will receive an initial case result generally within a few seconds. Responses are:
- Employment Authorized which confirms the employee’s employment eligibility
- Tentative Non-confirmation (TNC) which will require the employee to take further action
- DHS Verification in progress which generally takes up to 24 hours to complete.
A TNC does not necessarily mean employees are not authorized to work. A TNC may happen when a social security number (SSN) does not match, citizenship or immigration status change is not reported, name change is not reported or information is not entered correctly. If the employer receives a TNC, they must inform the employee and print and review the TNC notice with the employee.
The employee decides whether or not to take action on the TNC. An employer may not Influence or coerce an employee’s decision whether to contest a TNC. If the employee contests, the employer should refer them to the appropriate agency based on the notice. The employee has 8 federal government work days to visit or call the appropriate agency to resolve the discrepancy. The employee continues to work during the TNC resolution process. Employers are prohibited from terminating the employment of an employee because of an interim case result until the TNC becomes a Final Non-confirmation. If the employee chooses not to take action, the employer may terminate the employee and close the E-Verify case.
An employer that participates in E-Verify must post the Notice of E-Verify Participation poster provided by DHS and the Right to Work poster issued by Department of Justice, Immigrant and Employee Rights Section at the company’s hiring location. If the posters cannot be displayed at the hiring location, they must be provided to applicants with job application materials.
The E-Verify Federal Contractor Rule only affects Federal contractors who were awarded a new contract on or after the effective date of the rule, September 8, 2009, that includes the FAR E-Verify clause. Some existing Federal contracts may also be bilaterally modified to include the FAR E-Verify clause.
Some employers choose to use an E-Verify Employer Agent to confirm the employment eligibility of their employees. Employer Agents may offer E-Verify along with other services, such as background checks. E-Verify is a free service, but E-Verify Employer Agents may charge fees to their clients for using E-Verify.
USCIS monitors against E-Verify system misuse. They work with employers if they identify compliance issues by notifying employers of noncompliant behaviors and offering compliance assistance in the form of emails, phone calls, desk reviews, and site visits. These monitoring and compliance activities assist and encourage E-Verify participants to use E-Verify as required by laws, rules, regulations and agency policies. Improper use of E-Verify may be referred to Immigration and Customs Enforcement (ICE), the Department of Justice (DOJ) or other investigative or law enforcement agencies.
E-Verify offers resources to help employers evaluate their E-Verify practices and stay in compliance with E-Verify requirements.