What You Need to Know about E-VerifyShelley Phelps
June 12, 2009 — 2,920 views
What is E-Verify
E-Verify was originally introduced to employers as the Basic Pilot Program. The program was developed to provide employers with a free internet-based system where they could determine employment eligibility of new hires and the validity of their Social Security numbers. The system is operated by U.S. Citizenship and Immigration Services (USCIS), part of the Department of Homeland Security (DHS) partnered with the Social Security Administration (SSA). Employers are able to verify the employment eligibility of their employees, regardless of citizenship. Based on information provided by the employee on his or her Form I-9, E-Verify confirms this information electronically against records contained by DHS and SSA databases.
Currently, E-Verify offers employers the best option to electronically verify the employment eligibility of their newly hired employees. You can register online for E-Verify. Upon completion of the registration process, you will be required to sign a Memorandum of Understanding (MOU) that supplies the terms and agreement between you the employer, the SSA and DHS. The MOU must be signed by an employee with the proper authority to do so.
After you register for the automated system, The MOU, User Manual and Tutorial contain instructions and other related materials on E-Verify procedures. You must complete the tutorial before using the system.
Do I Still Need Form I-9?
The use of E-Verify does not replace the requirement that all employers in the U.S. and all post-November 6, 1986 hires complete Form I-9. E-Verify is processed in addition to the mandatory completion of Form I-9. Currently, USCIS does not offer the use of the electronic Form I-9.
After hiring a new employee and completing the Form I-9, you will be required to submit the following information:
- Employee/s name and date of birth
- Social Security Number
- Citizenship status
- An A number or I-94 number, if applicable
- Type of document provided on the Form I-9 to establish work authorization status
- Proof of identity, and expiration date when applicable
The response to your initial query is sent within seconds of submitting the information. Please note that documents provided from "List B" for the Form I-9 must have a photograph.
When Can I Run an E-Verify Query?
An employer may not initiate a query until an individual accepts an offer of employment and after the employee and employer complete the Form I-9. This query must be initiated by the employer within 3 business days after the new hire's actual start date.
Employers participating in E-Verify must verify all newly hired employees, both U.S. citizens and non-citizens. Employers are not to use the program to prescreen applicants for employment, confirm current employees hired before the MOU was signed or re-verify any employee who with temporary work authorization.
E-Verify cannot be used to verify immigration status, only a new hire's employment eligibility.
Additionally, E-Verify cannot be used for employees who do not yet have a Social Security Number. If you have an employee with this issue, you should complete the Form I-9 process with him or her and wait to process the E-Verify. Make sure you note on the Form I-9 why you have not yet run an E-Verify query. In the meantime, you will have completed the Employment Eligibility process with your employee and verified his/her work authorization so that your employee is permitted to work temporarily without a Social Security Number. Once the employee has received his/her Social Security Number you may run the E-Verify query.
Is E-Verify Mandatory?
Participation in E-Verify is voluntary for most employers with some limited exceptions. Many states have begun making E-Verify mandatory for their public contractors and the federal government enacted its own amendment to the Federal Acquisition Regulation ("FAR") mandating E-Verify for many of its contractors and some of their sub-contractors.
Employers that enter into a contract with the federal government and are required to enroll in E-Verify must register with E-Verify when the provision takes effect. After enrolling in E-Verify, the employer is responsible for reporting to the DHS if it continues to employ an individual after receipt of a final nonconfirmation notice. Continuing to employ the individual exposes the employer to a fine in addition to civil monetary or criminal sanctions that may be placed against the employer.
Under the existing E-Verify program, employers are only permitted to verify the employment eligibility of new hires - current employees cannot be processed in E-Verify. However, large contractors feel that it would be too big a task administratively to monitor their E-Verify obligations with respect to employees assigned to the contract and new hires where numerous federal contracts are in place and the workforce varies. This has resulted in the Department of Defense and DHS creating a provision under the Federal Contractor E-Verify Rule whereby an employer may choose to query all of its existing employees hired after November 6, 1986, rather than just those assigned to the contract.
It should also be noted that with the recent changes in our administration, the proposed mandate for federal contractors to be processed through the E-Verify program has been delayed until September 8, 2009. The postponement of the mandate for federal contractors came as a result of a federal lawsuit filed by business members against the DHS. The main concern being raised is the accuracy of the E-Verify data. The Government Accountability Office (GAO) has found that the DHS E-Verify system incorrectly lists some legal citizens as ineligible to work in the U.S., and the U.S. Chamber of Commerce feels that the system has not been tested enough.
E-Verify: Pros and Cons
E-Verify may or may not make sense for some employers depending on the particular circumstances of the employer. Prior to enrolling in E-Verify, employers should give thought to conducting an internal I-9 audit and consulting with counsel. An employer may also want to consider the states in which it conducts business, review its current procedure for employment verification and weigh the pros and cons of E-Verify.
- E-Verify quickly verifies employment eligibility and almost eliminates Social Security mismatch letters.
- Employers utilizing E-Verify may presume that they did not knowingly hire an unauthorized worker.
- Employers in some states may be able to pursue certain types of business (state contracts).
- Protects jobs for authorized U.S. workers.
- Participating employers allow the SSA and DHS to perform periodic audits.
- E-Verify has been known to have mismatch problems, carrying a risk of false nonconfirmations that expose an employer to legal action.
- Employers must make an administrative commitment to the program to include training and timely management of the program.
- Improper use of the E-Verify program for pre-employment screening or to re-verify current employees exposes employers to liability.
- There is uncertainty regarding the technical capacity of E-Verify to handle a heavy load and the ability of the SSA to quickly resolve numerous confirmation issues.
Visit the USCIS E-Verify page for the most up to date information.