When it began in 1996, the E-Verify program initially was available in only five states. Currently, more than 520,000 employers nationwide use the program, with almost 44,000 of those being federal contractors. Because E-Verify is a voluntary program for non-federal contractors, participation is further evidence of good-faith compliance with the Immigration Reform and Control Act (IRCA). The Department of Homeland Security (DHS) has stated that good-faith participation in E-Verify will protect employers from civil and criminal penalties for hiring undocumented workers. The agency also asserts that E-Verify use establishes a rebuttable presumption that the employer hasn’t knowingly employed an unauthorized screened worker. Note that this rebuttable presumption may be similarly achieved through the proper completion of an I-9 Form.
Using E-Verify
To participate in E-Verify, you must sign a memorandum of understanding (MOU). Under the MOU terms, you must verify all new hires within the enrolled hiring site. E-Verify cannot be used on prospective employees, employees who need to be re-verified, or existing employees. Employers who participate in E-Verify must still complete the I-9 and must only accept List B documents that contain a photograph. You must submit the employee’s information to E-Verify within three days of the employee’s hire date. The submission of information may only be done online; there are no phone or fax alternatives. You may also choose to authorize a third party to process your employees through E-Verify.
Once the new hire’s information has been submitted, most employers receive verification within seconds. While the U.S. Citizenship and Immigration Services (USCIS) administers E-Verify, both the Social Security Administration (SSA) and DHS provide their databases to process the queries.
If the new hire is a citizen, the name and Social Security number (SSN) will be submitted to SSA and checked against more than 449 million SSA records. If the new hire is a noncitizen, then the name, SSN, and “A” number will be submitted to DHS and checked against 80 million DHS records. If neither SSA nor DHS can confirm work authorization within 24 hours, you receive a tentative nonconfirmation (TNC).
During the TNC period, you may not terminate employment and should check the accuracy of the information for misspellings. If an employee doesn’t contest or resolve the nonconfirmation finding within eight workdays, E-Verify issues a final nonconfirmation notice, and you are required to either immediately terminate the employee or notify DHS you continue to employ the worker.
If the employee contests the TNC, you will refer the employee to either visit the local SSA office or call DHS. The employee has 10 days to resolve the issue with the local agency. Otherwise, a final nonconfirmation will be issued. If you continue to employ the worker after a final nonconfirmation, a rebuttable presumption is created that you have knowingly employed an unauthorized foreign national. If you fail to notify DHS through E-Verify of the continued employment, you face fines ranging from $550 to $1,100.
Timeliness and accuracy of E-Verify
Of the queries submitted to E-Verify, 92% are handled by SSA and only 8% are passed along to DHS, which is responsible for verification for noncitizens. USCIS notes that accuracy has improved, and currently 98.81% of all submissions are automatically verified as work authorized, up from 83% in 2002 and 94.7% in 2007. Initial TNCs that later result in work authorizations only constitute 0.01% of all E-Verify submissions.
Secondary verifications are performed by USCIS employees who manually verify employment authorization. The majority of secondary verifications by USCIS are typically resolved within 24 hours, but some queries may take up to two weeks. Previous studies indicated that E-Verify may have growing pains, as more employers registered particularly in the secondary verification. Note that SSA requires a physical visit to a local office to resolve a TNC.
When can verification systems be used?
Except for certain federal contractors, the E-Verify system may only be used on new hires within three days of hire, not on current employees. Workers who were hired before the employer entered into the MOU may not be verified, nor may prospective employees be screened through the system.
The Social Security Number Verification System (SSNVS) may be used on current employees as well as new hires, but only to verify employee names and SSNs for wage reporting purposes. Registered employees also enter into an agreement with SSA regarding the proper use and disclosure of the information.
How do two verification systems differ?
E-Verify is administered by USCIS and is intended to verify employment authorization. The SSNVS is only intended to verify Social Security information to provide accurate W-2 statements.
A no-match through SSNVS alone shouldn’t prompt an employer to take punitive action against an employee. Both E-Verify and the SSNVS use data provided by SSA, but E-Verify goes a step further by checking the immigration status of noncitizens.
Should you make copies of documents?
The IRCA doesn’t require you to make copies of the supporting documentation, although some states do mandate the copying of identity and employment authorization documentation. If you choose to make copies, however, you must do so for all new hires regardless of citizenship or national origin, and the copies should be kept with the I-9. Be mindful that copies of supporting documentation could reveal errors in recording the document information in Section 2 of the I-9.
