Federal law requires employers to only hire individuals who may legally work in the United States—either U.S. citizens or authorized foreign nationals. To comply with the law, employers must verify the identity and employment authorization of each individual they hire by completing and retaining the Employment Eligibility Verification document (Form I-9). Despite employers’ best efforts, compliance with federal law can be difficult.
To enhance enforcement of immigration law, the federal government implemented E-Verify. Utilizing it can help employers improve their Form I-9 compliance and limit potential violations. The following article provides more information on what E-Verify is, how it works and factors for employers to consider before enrolling in this program.
WHAT IS E-VERIFY?
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 authorized the federal government to implement E-Verify to assist employers in complying with federal immigration law. It is a free, web-based program that allows employers to quickly and easily confirm newly hired employees’ identities and employment eligibility. This program is administered by the U.S. Social Security Administration (SSA) and the U.S. Citizenship and Immigration Services. There are approximately 1 million employers currently enrolled in E-Verify.
E-Verify compliments Form I-9 by enhancing employment verification processes. The program is compatible with Form I-9 and uses information from employees’ completed forms. E-Verify is tailored to employers and provides convenient features, including 24-hour secure access, instant verification results, photo matching to combat document fraud, user flexibility, usage monitoring, proof of compliance in the event of government audits, interactive training, personalized assistance and alerts when there’s a record mismatch.
Although E-Verify uses information from Form I-9, there are important differences. For example, all employers are required by federal law to complete Form I-9 for each newly hired employee; on the other hand, E-Verify is voluntary for most employers. Employers may be forced to enroll in the program as a result of a legal ruling, and some states require employers to use E-Verify as a condition of business licensing. In particular, federal contractors subject to the Federal Acquisition Regulation E-Verify clause must enroll in the program.
Additionally, E-Verify requires a Social Security number and photographs of List B documents, both of which are not required to complete Form I-9. Further, employers must use Form I-9 to reverify expired employment eligibility documents, but they may not use E-Verify for that purpose.
HOW DOES E-VERIFY WORK?
E-Verify begins with a completed Form I-9. First, an employer enters an employee’s Form I-9 information into E-Verify. Then, it confirms the employee’s employment eligibility by comparing the employee’s Form I-9 information against records from the SSA and the U.S. Department of Homeland Security (DHS). The process of verifying an individual’s employment eligibility is referred to as a “case” and typically takes only a few seconds. From there, E-Verify confirms the employee’s employment eligibility or indicates that the employee needs to take further action to establish their eligibility. An employer can only verify the employment eligibility of a single employee at a time.
E-Verify case results may be one of the following:
- Employment Authorized—This result means the employee’s information matches SSA and DHS records.
- Verification in Process—Such a result indicates the case has been referred to the DHS for further verification.
- Tentative Nonconfirmation—This result means the employee’s information does not match SSA and DHS records and additional information is required.
- Case in Continuance—Following this result, the employee must visit an SSA field office or contact the DHS. From there, more time will be necessary to make a final case result.
- Close Case and Resubmit—Such a result indicates the SSA or the DHS is requiring the employer to close the case and create a new case for the employee.
- Final Nonconfirmation—This result means E-Verify could not confirm the employee’s employment eligibility after the employee visited the SSA or contacted the DHS.
To complete the process, an employer needs to receive a final case result and close the case. There are four possible final case results, including:
- Employment Authorized
- SSA or DHS Final Nonconfirmation
- DHS No Show
- Error: Close Case and Resubmit
Cases resulting in “Employment Authorized” are automatically closed. E-Verify requires employers to close all other cases after they receive final case results. E-Verify does not change employer timelines for complying with Form I-9 requirements. An employer still must create a case no later than the third business day after a newly hired employee starts working for pay.
With E-Verify, employers can complete Section 3 of Form I-9 for rehired employees or treat rehired employees as new hires, ask them to complete a new Form I-9 and create a case in E-Verify. If an employer rehires an employee within three years of the initial execution of the previous Form I-9 but did not create an E-Verify case for the employee, they need to complete a new Form I-9 and create a case for the rehired employee.
If an employer rehires a former employee within three years of the date of the initial execution of the employee’s Form I-9, created a case in E-Verify for the employee’s previously completed Form I-9 and received a result of employment authorization, they may rely on the information from the employee’s previous Form I-9.
FACTORS FOR EMPLOYERS TO CONSIDER BEFORE ENROLLING IN E-VERIFY
Before enrolling in E-Verify, employers need to consider the potential advantages and disadvantages of the program. One of the biggest benefits is that it’s free. It can also protect employers from penalties for hiring workers who entered or are living in the United States without legal permission. Further, the program provides employers with training, customer support, error checking and usage reports to promote compliance with federal law.
However, employers need to consider the high transactional costs when deciding whether to voluntarily enroll in the program. E-Verify is intended to simplify the verification process, but employers typically must complete a considerable amount of ancillary work. For example, the system has specific rules and requirements relating to document acceptance, retention and processing. As such, training employees is especially important when using E-Verify. Employers may also need to navigate state laws and requirements, which can increase the associated costs and overall burden of compliance. Additionally, enrolling in E-Verify means employers may face greater government oversight, which may lead to increased organizational exposures. With this in mind, employers should seriously consider whether E-Verify makes sense for their respective organizations before enrolling.
Form I-9 requirements impact all employers. As enforcement actions continue to increase, Form I-9 compliance is especially important. E-Verify is intended to simplify the process of verifying employees’ identities and employment eligibility and improve compliance with federal law by quickly determining whether employees are authorized to work in the United States.
Strategies for implementing a successful Form I-9 process will likely vary depending on the size of the organization and location of employees, but an effective process can help reduce potential legal exposures while also saving time and money. E-Verify is one strategy employers can consider to potentially improve their Form I-9 process and ensure compliance. Employers can learn more about E-Verify by clicking here.
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