by John Nahajzer, Esq. and Jim Alexander, Esq., Maggio & Kattar, PC
What is E-Verify? E-Verify is the web-based system that verifies the employment eligibility of newly hired employees by comparing information from an employee’s Form I-9 to the information in the U.S. Department of Homeland Security (DHS) and Social Security Administration (SSA) records. More than 345,000 employers have elected to participate in DHS’ E-Verify program—could that many employers really be wrong? Well—really, it depends.
Although not embraced by all members of the legal and business communities, the momentum of the program is undeniable. Employers, concerned about the possibility that they may not recognize false documentation provided by an employee for the Employment Eligibility Verification Form I-9, gain a higher degree of confidence that all of their employees are, in fact, authorized to work in the U.S. when their documentation is "blessed" by the on-line system.
Employer participation in E-Verify is free and use of the system is relatively easy. It is important to understand, however, the use of E-Verify does not replace the compliance requirements of the Form I-9 and in fact, adds extra layers of compliance. To certain employers, the additional requirements and time spent doing the extra steps are worth the rewards of the program.
If you are considering signing up for the E-Verify program, we recommend an internal training and adequate preparation time so that the additional requirements can be integrated into your typical new hire routine.
Presently, E-Verify involves three main steps that occur after the employee has completed the Form I-9:
- Create the case. Enter the information provided for the Form I-9.
- Review the case. You’ll know within a few seconds whether everything is fine, or additional steps are required.
- Close the case. Confirm if the employee is still working for you. You must close the case to receive the verification report that must be printed and kept with the employee’s Form I-9.
However there are additional steps both before beginning to use E-Verify and once the employer commits to using the E-Verify system including:
- Ensuring appropriate use of E-Verify. E-Verify may not be used to pre-screen candidates for employment. A case may only be created after an offer of employment is extended and the Form I-9 is completed. E-Verify must be used consistently for ALL newly hired employees.
- Pre-Employment Notices. The employer must provide and post DHS Supplied notices regarding company participation in E-Verify to all prospective employees. If the employer has multiple hiring locations that will be using E-Verify, all prospective employee materials should be consistent across locations.
- Case Entry and Case Management Personnel. You will need to identify who will be entering cases into E-Verify upon receipt of the Form I-9 and then managing resolution of any issues until the case can be closed. Once identified, your processes must address how Form I-9 records will be provided to these individuals. Case entry and case management personnel will also be required to comply with the E-Verify recordkeeping, training and refresher tutorial requirements.
- Entry of cases within 3 business days of the first day of work for pay. Generally, you must create a case for new employees in E-Verify within 3 business days of the first day they begin to work for pay, but after the Form I-9 is completed. If the Form I-9 is being completed in a remote office and then sent to case entry and case management personnel, your processes must support the timely exchange of this information.
- Photo identity verification requirements. Employers that participate in E-Verify may not accept a List B document that does not contain a photo. In addition, if an employee voluntarily elects to provide a Permanent Resident Card, Employment Authorization Document or a U.S. Passport, for Section 2 for the Form I-9, you must also verify that the photo displayed in E-Verify is identical to the photo on the document that the employee presented.
You must also keep a copy of the document used for the so-called "photo matching" with the Form I-9, even if your normal practice is not to keep copies of documentation provided in support of the I-9.
- Hiring of newly arrived foreign nationals. While an employee is not required to provide a social security number for the Form I-9, they must provide one in order to create a case in E-Verify. It may take a few weeks for work authorized foreign nationals to receive their social security number if they are newly arrived to the U.S. You may NOT postpone the start date until the social security number is received. You will need to put in place a system for E-Verify cases that are pending input until the social security number is received. When you enter the case in E-Verify, you will then select the reason for the late case entry.
- Management of Tentative Non-Confirmations. A Tentative Non-Confirmation (TNC) means only that the information entered into E-Verify does not match the information in the DHS or SSA databases. A TNC could be due simply to a data entry error – either on the Form I-9 or by the E-Verify user. A TNC may also be due to a data error in the DHS and/or SSA databases.
For this reason USCIS recently expanded the "Self Check", a free online service of E-Verify that lets job seekers securely confirm the accuracy of the same information checked by E-Verify to all 50 states and U.S. territories. Employers may wish to consider including information on "Self Check" to prospective employees so that they may resolve any data issues prior to beginning employment and thereby avoid the inconvenience of the TNC.
An employer may not terminate an employee upon receipt of a TNC unless the employee elects not to contest it. If the employee elects to contest the TNC, he or she has eight (8) federal business days to resolve the discrepancy with the SSA. Case management personnel will need to be prepared to initiate and follow up on TNCs and ensure that cases are resolved and closed timely.
E-Verify is not the right choice for all employers and they should make the decision to participate in consultation with their legal counsel. It is critical to ensure that the employers who elect to use E-Verify are certain that they implement processes that support compliance with the additional requirements that participation with E-Verify entails. We believe that choosing to participate in E-Verify requires a careful analysis of the requirements both for the initial implementation of the system as well as the ability to engage in on-going management of additional requirements.
Join Employer Compliance Experts Jim Alexander and John Nahazjer as they tackle the latest in employer compliance on our August 8th Webinar, From I-9 to E-Verify: How to Master HR’s Newest Immigration Challenges. Among the topics to be discussed will be the proposed new I-9 Form, what to do in the event of an ICE audit as well as some of the features and pros and cons of DHS’ E-Verify Program.
Attorneys John Nahajzer and Jim Alexander are the managing shareholders of Maggio & Kattar, PC, the largest boutique immigration law firm in Washington, D.C. Each has unique expertise in counseling clients on corporate business immigration issues, including corporate compliance, E-Verify, and Social Security No-Match.