E-Verify Errors: The Pitfalls Employers Should Know About

by Kirton McConkie PC

Utah employers with 15 or more employees must register with and use a status verification system to verify work authorization of any new employee. Currently, the only system that verifies work authorization is E-Verify, which is an internet-based system to confirm employment eligibility by comparing information from an employee’s Form I-9 to data in the Department of Homeland Security’s and Social Security Administration’s records.  

E-Verify does not replace the Form I-9 process. It is an additional employer responsibility with heightened documentation requirements. Some employers, especially those using an electronic I-9 system, integrate their E-Verify and I-9 processes for convenience.

Utah state law currently does not impose penalties for failure to register with or use E-Verify properly, and federal law generally does not require employers to use E-Verify, unless they employ international students in the STEM fields or hold certain federal contracts, nor does it impose penalties for E-Verify mistakes.

Employers should not get too comfortable, though. They remain subject to penalties under federal law for improperly completed I-9s and immigration-related discrimination in the hiring process.

U.S. Citizenship and Immigration Services (USCIS) gets a birds-eye view into an employer’s I-9 process by tracking and documenting the employer’s use of E-Verify. USCIS monitors use and notifies companies of patterns of noncompliance—that is, failure to meet the terms of the employer’s E-Verify memorandum of understanding or follow the procedures in the various E-Verify and I-9 manuals. 

So how can an employer stay off the E-Verify radar screen? Here are a few of the most common E-Verify employer mistakes:

Error 1: Completing E-Verify without an I-9 Form

Remember, E-Verify does not replace the I-9. Employers run queries in E-Verify based on information they and the employee record on the I-9. Employers remain liable for I-9 penalties, even if they use E-Verify—although E-Verify use is a factor an employer could use to demonstrate good faith I-9 compliance in the event of an I-9 audit. Immigration & Customs Enforcement (ICE) is in full swing with I-9 audits, which have significantly increased over the past several years.

Error 2: Failing to Create a Case in Three Days

Employers know from experience that it’s not easy to complete an I-9 by the third business day after the employee starts work for pay. Delays usually result when employees have misplaced a Social Security card or ID or otherwise fail to provide Form I-9 documents on time. Delays can be even worse in E-Verify, since employers enrolled in E-Verify must take the additional step of verifying that the employee’s Form I-9 information matches government records. 

To do this, employers have to request information above and beyond that required in a normal I-9 process, including obtaining a Social Security number, which is normally optional in an I-9 process, and a List A or B document with a photograph. Legal names on documents must also match, so employees with a new marital status must have already updated their names with Social Security and other government agencies.

If a newly hired employee has applied for but has not yet received his or her Social Security number—such as where the person is an international student or newly arrived immigrant—employers can make a note on the employee’s Form I-9 and set it aside, allow the employee to continue to work, and create the E-Verify case as soon as the new Social Security number is available. If the case was not created by the third day after the employee started work for pay, the employer must indicate the reason for this delay in the drop-down list in E-Verify or state a specific reason in the field provided.

Error 3:  Immediately Terminating an Employee with a Tentative Non-confirmation (TNC)

This is a serious error. In most cases, E-Verify will instantly verify the employee’s work authorization and the employer can close the case. When E-Verify cannot immediately confirm the employee’s work authorization, it may require the employer or employee to take action. If the employee information does not match government records, the employer will see a TNC  response. 

If E-Verify returns a TNC, the employer should carefully review all entered information for accuracy. If the employer spots a typographical error or entered incorrect data, the employer should close the case and create a new case for the employee with the correct information. 

Employers cannot terminate an employee simply because E-Verify returned a TNC. They cannot take any other adverse action, including reducing scheduled hours, delaying or preventing training, or refusing to assign the employee to a federal contract or other job. Instead, employers must proceed as indicated on the E-Verify result screen—that is, promptly provide and review with the employee the TNC notice, which will ask if the employee wants to contest the result. If the employee wishes to contest, the notice will refer the employee either to the Social Security Administration or the Department of Homeland Security to resolve the issue. Employers cannot take adverse action until E-Verify returns a “final non-confirmation” or “no show” response for that employee.

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.

© Kirton McConkie PC | Attorney Advertising

Written by:

Kirton McConkie PC

Kirton McConkie PC on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.