E-Verify: Should You Be E-Terrified?
employers face a number of risks in their business, and perhaps none is more
common than the risk of employing unauthorized workers. The nature of the
workforce in the construction industry and related trades means these employers
are often targets for investigations and raids by U.S. Immigration and Customs
Enforcement (ICE) looking for businesses that employ individuals not authorized
to work in the United States. U.S. employers are required to complete the Form
I-9 for new hires to verify work eligibility, but many do not complete the form
properly, on time, or at all. Frequently, the company representatives tasked
with certifying the form are not trained to complete the certification process
properly, and any of these errors can lead to significant fines during a
One tool employers may consider using to limit their risks in
this area is the federal government’s E-Verify system, designed to quickly
determine whether new employees are authorized to work in the United States.
The E-Verify system also offers a limited “safe harbor” to its users: if an
employee is determined by E-Verify to be authorized to work in the United
States, the employer is protected against liability if the E-Verify result was
an error and it later turns out the worker was not actually work authorized. As
explained below, this is only one factor for employers to consider when
deciding whether to register for the E-Verify system.
While use of E-Verify is generally voluntary, many employers
are required by state or local law, or status as a federal contractor, to use
the system. Additionally, Congress is currently considering legislation that,
if it becomes law, would phase in mandatory use of E-Verify for virtually all
employers nationwide. With the government’s increased scrutiny of the private
sector workforce and with
ever-expanding E-Verify obligations, it is imperative that employers become
familiar with E-Verify’s basic rules and begin to plan for administrative
changes in the event that using the system becomes mandatory for them.
What Is E-Verify?
E-Verify is the federal government’s online verification
system that uses Social Security Administration (SSA) and Department of
Homeland Security (DHS) databases to enable employers to verify that an
employee is authorized to work in the United States. There is no charge for use
of the system.
Who Is Required
to Use E-Verify?
Federal Contractors and Subcontractors (and Sub-subcontractors, etc.)
2008, President Bush issued an Executive Order requiring federal government
contractors to use E-Verify to confirm the employment eligibility of employees
who perform work on contracts within the United States. In September 2009,
regulations implementing this requirement went into effect. The regulations
require federal contractors to agree, through language inserted into their
federal contracts, to use E-Verify to confirm the employment eligibility of all
persons hired during a contract term. In addition, the rule requires federal
contractors to confirm the employment eligibility of current employees
“assigned to the federal contract” within the United States, which includes the
50 states and the District of Columbia, Guam, Puerto Rico, and the U.S. Virgin
Islands. This requirement is a dramatic departure from the E-Verify rules that
apply to all other users prohibiting use of E-Verify for any current employees.
a third of states require use of E-Verify for some or all employers in the
state. State legislation and court decisions result in an ever-changing list,
making it difficult for employers that operate in multiple states to keep up
with their legal obligations. Employers should consult with legal counsel to
determine whether they are required to use the E-Verify
system in a particular state.
At the time of writing, the following states required use of
E-Verify for all or most employers: Arizona, Alabama, Georgia, Louisiana,
Mississippi, North Carolina, South Carolina, Tennessee, and Utah.
Florida, Indiana, Missouri, and Nebraska require public
employers and state government contractors (and most subcontractors) to use the
In Colorado and Minnesota, state government contractors must
use E-Verify. And Idaho and Virginia require
public employers to use the system.
Should My Business
Voluntarily Enroll in E-Verify?
employers have opted to voluntarily use the E-Verify system. By doing so, these
employers are not likely to be significantly affected by a future federal
mandate to use the system. These employers also avoid having to make sense of
the ever-changing patchwork of state laws requiring use of the system. But
other employers have taken a wait-and-see approach to E-Verify and, absent a
mandate to do so, have not enrolled in the system. Both approaches present
benefits and problems, and employers should carefully consider a number of
factors, including those below, and consult with legal counsel in determining
which course to take.
Benefits of Using E-Verify
- Peace of Mind. Using E-Verify provides employers
with a sense of certainty and confidence. You receive official notice from the
federal government that a particular employee’s information (as provided to the
employer) matches what is in the government’s databases. It also provides a
limited “safe harbor” from liability in the event that the system’s results
turn out to be inaccurate. If the E-Verify system indicates that an employee is
authorized to work, and the employer has been given no reason to suspect that
the employee is not authorized to work in the United States, the employer is
protected against federal government fines that may otherwise be imposed for
hiring or continuing to employ a worker known to lack work authorization. Note
that this safe harbor is limited. If anything about the I-9, the documents
presented by the employee, or other evidence (such as a complaint or tip from a
credible source) should have indicated to the employer that the employee was
not authorized to work in the United States, the safe harbor protection may be
lost, and the employer could face liability.
- Improved I-9s. Use of E-Verify will generally
improve an employer’s I-9 practices. The information that employers put into
the system comes directly from the Form I-9. If an I-9 is incomplete or not
completed correctly, the employer may not be able to run the required E-Verify
query, or the query may cause an erroneous result. Most employers who use
E-Verify find they are forced to pay more attention to proper completion of
their I-9 forms to avoid problems with E-Verify.
- Fewer SSA “No-Match” Letters. Because the E-Verify system compares
an employee’s data to the SSA’s databases, use of E-Verify will virtually
eliminate so-called “No-Match” letters from the SSA. Any employee who would have
triggered such a letter would be revealed at the time of hire and would either
work with the SSA to ensure that the appropriate information is listed in the
SSA’s database or would be discharged.
- Preparation for Mandatory Use. Using E-Verify voluntarily may be
beneficial to employers who expect they may soon be required to use the system
due to federal, state, or local laws or due to contractual agreements with
their clients. Registering for E-Verify in advance of a requirement to do so
will give the business the opportunity to phase in use of the system. This
allows time to resolve any difficulties in using the system and can be
particularly effective for businesses with multiple worksites, as other
worksites learn from the first worksite’s trials and errors. Early voluntary
adoption of E-Verify may help avoid HR panic if/when E-Verify becomes
- Evidence of Good Faith. Using E-Verify may demonstrate to the
federal government that an employer has voluntarily implemented best practices
by taking steps to ensure it employs only those who may legally accept
employment in the United States. When facing a government investigation, proper
use of E-Verify may serve as evidence that the employer has made good faith
efforts to ensure compliance with workforce authorization laws and regulations.
Any employer who has been through an ICE investigation can attest to the fact
that “good faith” is an important determination that can lead to lower fines
(or no fines at all).
Risks of Using E-Verify
- Waiver of Advance Notice of
employers sign a Memorandum of Understanding with the federal government as
part of the E-Verify registration process, they give up their right to the
72-hour advance notice other employers receive before an ICE inspection of
their I-9 forms. This means employers who are registered for E-Verify must be
prepared for an ICE inspection at any moment by ensuring that their I-9s are in
order and that they have implemented a government investigation response plan.
- Voluntary Exposure of I-9 Errors. As noted above, the information
employers put into the E-Verify system comes directly from the Form I-9, which
means the system has the potential to reveal the employer’s I-9 errors and
issues to the federal government, which could possibly result in liability. By
contrast, for employers who do not use E-Verify, any incorrect information on
an I-9 form would only be revealed to the federal government if the employer
was being audited or investigated.
- Data Mining. I-9 data in E-Verify enables the government to
easily mine the information for evidence of questionable practices or potential
violations of law. The government’s review of an employer’s E-Verify entries
could reveal multiple employees providing the same social security number,
alien registration number, or green card document number, which could trigger
an investigation. To give rise to an investigation, however, such situations do
not have to arise within a single employer’s workforce. If several employers
use E-Verify and each has an employee with the same identifying information,
those employers could be targeted for an investigation based on the likelihood
that at least some of the documents presented by the employees were fraudulent.
If the government determines that the employer should have noticed that the
documents were fraudulent, significant fines or other penalties could result.
- System Errors. The E-Verify system is far from
perfect. An outside evaluation of the system revealed that E-Verify often will
wrongly confirm the employment eligibility of individuals who are not
authorized to work in the United States. The main reason for the high error
rate is that E-Verify cannot detect identity theft. If an employee provides an
employer with the name, date of birth, and social security number of an
individual who is authorized to work in this country, E-Verify is unable to
determine that the information does not pertain to the employee presenting the
information because E-Verify typically does not include photographs.
- Risk of Investigation by the
Department of Justice. Similar to the data mining concerns above, DHS shares information with
the Justice Department’s Office of Special Counsel for Unfair
Immigration-Related Employment Practices (OSC) relating to possible employer
misuse of E-Verify.
As of March 2010, DHS provides data, including citizenship
status, to the OSC from queries employers run through E-Verify. The OSC may use
the information from E-Verify to investigate possible violations of the
Immigration and Nationality Act. These violations could include discrimination
based on citizenship, immigration status, or national origin; document abuse by
imposing unfair documentation requirements or practices during the I-9 process;
and/or retaliation against certain employees.
Even without such information-sharing, use of E-Verify gives
rise to a greater possibility that managers and/or HR representatives will
commit “document abuse” or other discriminatory practices in the hiring
process. Employers using E-Verify often mistakenly believe they are required to
see an employee’s green card if the employee claims to be a lawful permanent
resident. Requesting that document can result in an OSC complaint and
investigation. Similarly, many employers improperly use E-Verify for existing
employees, which can also result in OSC action.
- Administrative Costs. While the E-Verify system is “free,”
in that employers do not have to pay any fees to use it, use of the system
requires that employers invest a significant amount of administrative time and
resources in training, system administration, running E-Verify queries, and
working through the case resolution process for employees who are not
immediately confirmed by the government as employment authorized. In addition,
use of E-Verify does not relieve employers of the requirement to complete I-9
forms for employees, which means enrolling in E-Verify actually increases,
rather than decreases, the administrative tasks associated with hiring.
- Loss of Employees. Finally, using the system may, in
some cases, tell employers something they do not want to know: that the highly
qualified person just hired and desperately needed to fill a critical role in
your business is not authorized to work in the United States.
How Do I Register
for and Use E-Verify?
Whether you choose to or are required to enroll in the
E-Verify system, the
steps are the same:
- Register for E-Verify. Registration to use E-Verify can be
- Complete E-Verify tutorial. Each employer representative who
- Post required notices. E-Verify employers must post the
- Read and comply with the E-Verify
manual. The manual
- Use E-Verify at registered sites
for new hires. Once
- Verification must be initiated within 3 business days after the
employee’s first day of work for pay. (The deadline is Thursday for someone
hired on a Monday.)
- Verification must not be
initiated until parts one and two of the I-9 form are complete.
- If a “List B” document is used
by the employee during the I-9 process, the employer may accept it only if it
contains a photograph.
- If an I-551 (Permanent
Resident Card), I-766 (Employment Authorization Document), or U.S. Passport is
used by the employee during the I-9 process, the employer must retain a copy.
- Typically, verification may only
be completed for new hires. If the employer is not required to complete a form
I-9 for an employee (and does not do so), it should generally not submit that
employee’s information for verification. As noted above, this rule is different
for federal government contractors, who are required to use E-Verify for
employees assigned to work under certain federal government contracts. The rule
is also different for rehires. DHS indicates that a rehire should be treated as
a “new hire” for E-Verify purposes, even if the employer would otherwise simply
use Section 3 of the Form I-9 to reflect the employee’s rehire date.
- If an employee is returning
from certain layoffs, a strike, a lockout, or authorized leave, he is probably
not a “new hire.” A new I-9 does not need to be completed for this employee,
and the employee’s data should not be submitted to the E-Verify system.
However, to show that the employee is not being “hired,” the employer must be
able to establish that the employer and the individual employee reasonably
expected that the employee would resume employment at all times after the beginning
of the layoff, strike, lockout, or authorized leave.
- If an employee is transferred
from one worksite to another (but continues to work for the same employer), a
new I-9 must not be completed, and that employee’s information must not be
entered into E-Verify.
- If an employee is transferred
from one employer to another (depending on the circumstances, this may apply
when an employee transfers from one legal entity to another?even within the
same corporate organization), a new I-9 must be completed. If that employee has
been transferred to a worksite that is registered for E-Verify, his information
must be entered into the verification system.
- Obtain confirmation of employment
authorization or a final non-confirmation. Once an employer puts an employee’s I-9 data into the
- Employment Authorized: This indicates the employee is
- SSA Tentative Non-Confirmation: This indicates there is an
- The employer must inform the employee of the TNC and must print the TNC
notice (generated by E-Verify) and review it with the employee.
- The employee has the option to
contest or not to contest the TNC. The employee must indicate on the notice
whether he or she will contest the TNC. The employer and the employee must sign
the TNC notice.
- If the employee chooses not to
contest the TNC, it is considered a final non-confirmation of employment
authorization, and the individual’s employment should be terminated.
- If the employee chooses to
contest the TNC, the employer must use the E-Verify system to generate a
referral letter, which will provide instructions to the employee for contesting
the TNC. The employee must contact the appropriate agency (SSA or DHS) within 8
government working days to resolve the discrepancy.
- While attempting to resolve the
discrepancy, the employee may continue to work. The employee must not face
adverse employment action based on a TNC.
- SSA or DHS will automatically
update the E-Verify system once the discrepancy is resolved or once it is
determined that the discrepancy is not resolvable. At that point, the status of
the verification will change to “Employment Authorized,” “Final
Non-Confirmation,” or “Review and Update Employee Data then Resubmit.”
- Employment Authorized: the employer should resolve the query and record the
- Review and Update Employee Data then Resubmit: the data originally put
into the system may not have been correct. Review the social security number
and other information carefully and resubmit the E-Verify inquiry.
- DHS Verification in Process: This indicates that DHS is working
- Discharge employees with final
non-confirmations unless the final non-confirmations are believed to be in
error (see above).
Compliance: remember that compliance with existing I-9 regulations is the first
step toward compliance with both federal and state E-Verify requirements.
completed online. At the end of the registration process, the E-Verify system
will issue a Memorandum of Understanding (MOU) to be agreed to by the employer.
There are multiple registration configurations available; it is generally
recommended that employers work with legal counsel to ensure that registration
is properly completed.
will submit verification requests must complete the online E-Verify tutorial
before initiating any requests.
provided DHS and DOJ notices at each hiring site so they are clearly visible to
prospective employees. If an employer uses an online application system, it
should provide the notices to applicants at the time they apply for positions
by posting them online.
will be provided by DHS during registration. It is also available on the
each hiring site is registered for E-Verify, it must use the system to confirm
the employment eligibility of every new hire at that site. An employer must not
use E-Verify for those hired before its registration date (unless those
employees are assigned to work under a federal government contract or
subcontract that requires their information be submitted to the E-Verify
Note that this
transfer provision must not be manipulated to avoid the use of E-Verify. If an
individual is legitimately hired in one location to perform work there and is
later transferred to a site registered for E-Verify (within the same legal
entity), the employer generally must not use E-Verify for that individual.
However, if the employer uses a California site simply to hire individuals with
the intention of sending those individuals to work in Arizona (or another
E-Verify state), it may face significant liability, as such activity creates
the impression that the employer may have constructive knowledge that it is
employing unauthorized workers.
E-Verify system, the system will (within seconds) return one of several results.
The most common are: “Employment Authorized,” “SSA (or DHS) Tentative
Non-Confirmation,” or “DHS Verification in Process.”
authorized to work. The employer must close the query and then record the verification
number generated by E-Verify on the employee’s I-9 form or print out the
verification page and retain it with the form I-9. No further action is
information mismatch with the SSA databases. The following instructions must be
followed by an employer for SSA and DHS Tentative Non-Confirmations (TNCs):
verification number generated by E-Verify on the employee’s I-9 form or print
the case verification sheet and retain it with the I-9. No further action is
Final Non-Confirmation: unless the
employer believes the final non-confirmation to be in error, the employer
should terminate the employee’s employment. Employers must keep records to
indicate reasons for termination. (Note that if the employer continues to
employ the individual, a rebuttable presumption is created that the employer is
knowingly employing an unauthorized worker, which can lead to significant
to confirm employment authorization in its databases. In general, DHS will make
a determination within 24 hours, and the status of the verification will change
to either “Employment Authorized” or “DHS Tentative Non-Confirmation.”
Employers should follow the instructions above once the status changes.
E-Verify process, while provided by the U.S. government at no charge, is far
from free. The system requires employers to understand and apply complex rules
governing employment eligibility. While many employers are required to use
E-Verify, others currently have the choice of whether to use it. The system can
be a useful tool, but it is best implemented as part of a comprehensive
compliance program. These programs may include I-9 training, voluntary I-9
audits, implementation of software programs, use of E-Verify, and policies
covering immigration compliance, which together will go a long way to
minimizing an employer’s legal liability for violations of immigration laws.
In the near future, use of E-Verify may be required for most
or all U.S. employers. This likelihood, when combined with the recent focus on
prosecution of employers for immigration-related violations, leads to the
conclusion that employers should implement strong compliance programs and begin
planning for the eventual use of E-Verify.