E-Verify

Scope

Any employer in the 50 states, the District of Columbia, Puerto Rico, Guam, or the U.S. Virgin Islands may use the system as long as the employer agrees to the rules of the program.

Regulatory citations

• None

Key definitions

• E-Verify: (Formerly called the Basic Pilot Program) is a free, internet-based system operated by the Department of Homeland Security (DHS) and the Social Security Administration.

Summary of requirements

The use of the E-Verify system is voluntary with the exception of some federal contractors (see below) and employers that are required by state laws to participate.

Employers who participate in the E-Verify program must:

• Use it to verify all new employees regardless of national origin or citizenship status.
• Make sure that an employee’s Form I-9 is filled out correctly, and that it is properly signed and dated before they attempt to use the E-Verify system, Since the E-Verify system utilizes information provided by employees in sections 1 and 2 of the Form I-9.
  • While employers aren’t usually permitted to require employees to provide specific types of documentation for the purposes of the Form I-9, E-Verify employers must obtain a social security number from each employee. While employees are not required to use their social security numbers as proof of work authorization in Section 2, an employee of an E-Verify employers must provide a social security number in Section 1 of the Form I-9.
• Require that List B documents (which establish identity) bear a photograph if they are presented.
• Make photocopies of an employee’s employment authorization document or permanent resident card when these forms of documentation are provided for section 2 of the Form I-9. The use of these documents automatically activates a photo screening tool in the E-Verify system, so employers will need the photocopies of these two types of documentation to match the photo on the employee’s document to the official photo displayed by E-Verify.

Keep in mind that while an E-Verify user may use the system for new hires before they actually begin work (as long as a job offer has been made and accepted), users may not utilize the E-Verify system (or the I-9 process, for that matter) to prescreen job applicants. These rules also apply to the I-9 process itself.

Using the E-Verify System. Employers who choose to participate in the program can register for E-Verify at https://e-verify.uscis.gov/enroll/StartPage.aspx. Once the enrollment process is complete, the United States Citizenship and Immigration Services (USCIS) will review the information and activate the account. After the account is activated, the employer will receive an email with login instructions, user ID, and password.

Employers must submit verification queries for newly hired employees no later than the third business day after the employee starts working for pay.

Privacy. The E-Verify system requires the collection and use of employees’ personal information, and it is the employer’s responsibility to safeguard the information and ensure that it is used only for the purposes outlined in E-Verify’s Memorandum of Understanding (MOU), to which all participating employers are required to agree. E-Verify employers are also responsible for ensuring that only authorized employees handle E-Verify information and perform verification queries.

E-Verify results. Once a participating employer enters the information for each newly hired employee, the most common initial results are as follows:

• An Employment Authorized result means that the employee’s work eligibility has been verified.
• A Tentative Nonconfirmation (TNC) result means that the employee’s Social Security information could not be verified. An employer must notify the employee of the TNC response and be provided with the opportunity to contest the result (employees who contest a TNC should be referred to the Social Security Administration). Since a TNC does not necessarily mean that the employee is not authorized to work in the United States, employers may not take any adverse employment action the employee based on a TNC.
• A DHS Verification in Progress result means that the employee’s information matches the information in the Social Security Administration’s records, but does not match the records of the Department of Homeland Security – the case is automatically referred to the DHS for further verification. No action is required by the employer at this point – DHS will respond to most of these cases within 24 hours.

Required posters. All employers who participate in E-Verify are required to post the English and Spanish notice provided by the Department of Homeland Security indicating their participation in the E-Verify Program, as well as the “Right to Work” poster issued by the Office of Special Counsel for Immigration-Related Unfair Employment Practices. Both of these notices must be displayed in plain view at the employer’s hiring site, informing both current and prospective employees that the organization participates in the E-Verify Program.

Requirements for Federal Contractors. For most employers, use of the E-Verify system is voluntary, but when it became effective on September 8, 2009, Executive Order 13465 (originally issued by President George W. Bush in June of 2008) required federal contractors who receive qualifying contracts on or after September 8, 2009, to participate in the E-Verify program. This requirement is meant to ensure that the federal government only does business with companies that have a legal workforce.

Qualifying contracts are those with a contract length longer than 120 days and a value above $100,000. Such contracts will include a clause committing the contractor to use E-Verify. Such a clause will also be required in subcontracts over $3,000. Though the requirement to use E-Verify will mainly affect new contracts entered into on or after September 8, 2009, previously established contracts that are modified may also contain this clause.

Federal contractors who are required to use E-Verify must use the system to verify the employment eligibility of:

• All new hires, and
• Employees assigned to work on the federal contract within the United States.

The requirement for federal contractors to use E-Verify to check the work eligibility of existing employees is a departure from the typically allowed use of the E-Verify system, which otherwise only allows for the verification of newly hired employees. “Employees assigned to work on the federal contract” does not include employees who normally perform support work, such as indirect or overhead functions, if they do not perform any substantial duties under the contract. However, it does include all employees who work directly on the contract, even if only for a limited amount of time or on an intermittent basis.

Under Executive Order 13465, federal contractors who are awarded a qualifying contract on or after September 8, 2009, also have the option of using E-Verify to verify their entire workforce (both new hires and current employees), regardless of whether the employees will be working on the qualifying federal contract. Note that this option is only available to contractors who are awarded a qualifying contract on or after September 8, 2009. Federal contractors who were using E-Verify before that date may not use E-Verify to verify their entire workforce unless they receive a federal contract with the E-Verify clause in it on or after that date.

Timeframes. An organization must enroll in E-Verify within 30 days of being awarded a qualifying contract, and it has 90 days from the date of enrollment to initiate verification of current employees assigned to work on the applicable federal contract. After that same 90 day period, contractors will also be required to verify newly hired employees within three business days after their start dates, and must continue to verify new employees for the life of the federal contract.

Contractors already using E-Verify. Since any employer (regardless of federal contractor status) can use E-Verify voluntarily, some employers who are required by the new rule to use the system may have already been participating in E-Verify. Where this is the case, employers should only run employees through the E-Verify system once. If an employee has already been verified, an employer does not need to re-verify that employee upon receipt of a qualifying federal contract.

During the E-Verify enrollment process, the employer will be asked to identify whether or not it is a federal contractor. Employers who are already using E-Verify and become a federal contractor after June 30, 2009, do not need to re-enroll in E-Verify, but do need to update their company profile to indicate their federal contractor status.

At the end of a federal contract, an employer may choose to continue to use E-Verify but should update its company profile to indicate that it is no longer a federal contractor. Such employers will no longer be able to confirm existing employees through E-Verify. A company that no longer wishes to participate in the E-Verify program at the end of a federal government contract must officially terminate their involvement in the program by selecting the “request termination” link in the E-Verify system.