The Importance of Complying with E-Verify Requirements


Thousands of employers use E-Verify – a voluntary computer system provided to employers by the United States Citizenship and Immigration Service (USCIS) that allows employers to verify the employment eligibility of newly-hired employees – as part of their employment procedures. After the employer submits information provided on the employee’s Form I-9 into the E-Verify system, E-Verify will check that information against the Social Security Administration (SSA) and the Department of Homeland Security databases, and provide 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).

Although E-Verify is an optional program, those employers that choose to use E-Verify are obligated to comply with certain legal requirements, including the following:

  • If an employee receives a “tentative non-confirmation” (or TNC), the employer must offer the employee an opportunity to challenge the finding by reporting to the designated agency (USCIS or SSA). If the employee chooses to challenge the finding, the employer is prohibited from terminating the employee for failure to obtain E-Verify authorization, 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.
  • Employers can only use E-Verify to check new hires, and cannot use the system to pre-screen employees.
  • Employers must use E-Verify within 3 days of the employee’s start date.
  • Employers 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.

Because E-Verify relies on the information provided on an employee’s Form I-9, it is also important that employers comply with I-9 legal requirements. Furthermore, because the government is cracking down on I-9 violations, all employers must ensure compliance with I-9 requirements regardless of whether they are using E-Verify or not. Specifically, employers must:

  • Allow employees to choose which documents to present for verification.
  • Refrain from requesting more documents than necessary.
  • Physically examine each original document the employee presents to determine if it reasonably appears to be genuine and to relate to the person presenting it. The person who examines the documents must be the same person who signs Section 2 of the Form I-9. The examiner of the documents and the employee must both be physically present during the examination of the employee’s documents.
  • Record the document title shown on the Lists of Acceptable Documents, issuing authority, document number and expiration date (if any) from the original document(s) the employee presents.
  • Provide the employee’s first day of employment under “Certification.”
  • Provide the name and title of the person completing Section 2 in the Signature of Employer or Authorized Representative field. Sign and date the attestation on the date Section 2 is completed.
  • Record the employer’s business name and address.
  • Return the employee’s documentation.
  • Refrain from using pre-populated information for Section 1 if using electronic software for I-9 completion, storage, and compliance.


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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