['I-9s']
['E-Verify']
05/16/2022
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The improper use of the E-Verify system can lead to discrimination. E-Verify users should adhere to the following program rules:
- Do not use E-Verify to prescreen applicants for employment.
- Do not use E-Verify to discriminate against any job applicant or employee on the basis of his or her national origin, citizenship, or immigration status.
- Newly hired employees must complete a Form I-9 before a user may create a case in E-Verify.
- Do not request that an employee present certain documentation for the Form I-9 or E-Verify purposes except for requiring that a List B document contain a photograph.
- Only federal contractors may use the E-Verify system for existing employees. Even federal contractors must specifically designate their desire to do so within the E-Verify system.
- Participating employers must initiate a verification query within a specified period of time. If a verification query is not initiated within those time frames, an E-Verify user must note the reason for the delay and attach the explanation to the Form I-9.
- Do not use E-Verify to reverify the employment eligibility of an employee once that employee's employment authorization has been verified in E-Verify.
- Notify an employee of a tentative nonconfirmation (TNC) and provide him or her the opportunity to contest the TNC.
- Do not ask an employee to obtain a printout or other written verification from either SSA or DHS.
- Allow employees to continue to work without penalty during the verification process.
Example: Marco, an applicant for employment, is a good candidate, but the employer received a tip from a current employee that Marco is not authorized to work in the United States. At the employer's request, Marco brings his work eligibility documents with him to his second interview, and the employer helps him complete the Form I-9 and run his information through E-Verify in an attempt to clear up the allegation. Marco's case in E-Verify comes back to indicate that he's authorized to work, so the employer continues with the interview process and ultimately hires Marco. Is this an appropriate use of E-Verify?
No. Not only has the employer violated both I-9 and E-Verify rules by running Marco through the system before an offer of employment has been made and accepted, but the company is now at risk of a discrimination claim. Despite employee's assertion that Marco was not authorized to work (and despite the fact that he was ultimately hired), the employer treated Marco differently than other candidates with regard to the employment eligibility process. If faced with a discrimination charge, the employer would be fighting an uphill battle. In this situation, the employer should have ignored the employee's claims that Marco was not authorized to work - at least until it completed the selection process. If Marco was the best candidate and was selected for hire, the employer should then have relied on the I-9 and E-Verify process to ensure Marco was authorized to work.
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