Basics of E-Verify for Employers


Despite the fact that E-Verify is designed to be straightforward and easy to use, many employers continued to be confused about the program, their rights, and their obligations. This article explains the E-Verify basics that employers need to know when using the program.

1. E-Verify is a voluntary computer system provided to employers by the United States Citizenship and Immigration Service (USCIS) that allows employers to electronically verify the employment eligibility of newly-hired employees.

2. In order to participate in E-Verify, the employer must submit information provided on the Form I-9 into the E-Verify online system. E-Verify then checks that information against the Social Security Administration (SSA) and the Department of Homeland Security databases, and provides the employer with one of the following results within seconds:(a) Employment Authorized (employee is authorized to work); (b) Verification in Process (DHS will respond within 24 hours); (c) Tentative Non-Confirmation (information provided by DHS does not correspond with SSA information); (d) Final Non-Confirmation (employee is not work authorized).

3. Employers are obligated to offer an employee the opportunity to challenge a “tentative non-confirmation” (or TNC) by reporting to the designated agency (USCIS or SSA). If the employee chooses to challenge, the employer is prohibited from terminating the employee for failure of E-Verify, unless and until the employer receives a final non-confirmation. On July 1, 2013, USCIS announced that E-Verify will provide email notification to employees of a TNC at the same time it notifies the employer.

4. E-Verify can only be used to check new hires, must be used within 3 days of the employee’s start date, and cannot be used to pre-screen employees.

5. If an employer chooses to use E-Verify, it must post a notice informing prospective employees that they are an E-Verify participant, as well as an Anti-Discrimination Notice issued by the Department of Justice, Office of Special Counsel that is visible to all prospective employees.

Immigration reform legislation could impact E-Verify, in addition to citizenship, border security, legal immigration, and enforcement. Senate Bill No. 744, known as the Border Security, Economic Opportunity, and Immigration Modernization Act, would phase in mandatory use of the federal E-Verify system by employers. As we recently explained in this article, the proposed legislation would expand, improve and mandate E-Verify for all employers, with the mandates phased in over a five-year period as follows:

    • Employers with more than 5,000 employees would have to use E-Verify no later than two years after publication of the regulations;
    • Employers with more than 500 employees would have to use the system within three years of publication;
    • Employers of agricultural workers would have to use the system within four years of publication; and
    • All other employers would have to use the system within four years of publication as well.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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