The big push is on – especially at the state and local level – to nudge employers to register with E-Verify, the government Web program that allows you to electronically verify the information provided on the Form I-9. Whether you’re using the program already or are thinking about it, there are some facts and factors you should be aware of.
If I sign up our company, I know it gives me access to a system for checking employees’ citizenship, but what obligations does the government mandate for employers who are in the system?
You’ll be faced with 10 major responsibilities outlined in a Memorandum of Understanding you’ll sign:
- Post a notice supplied by the DHS that you use E-Verify.
- Provide the identification of the designated E-Verify employer representative.
- When completing Form I-9, accept only List B documents that contain a photograph.
- Photocopy and retain Form I-551 (Permanent Resident Card) or Form I-766 (Employment Authorization Document) with I-9 records if they are presented by an employee.
- Notify DHS if you continue to employ following a nonconfirmation (with civil penalties of $500 – $1000 for failure to notify).
- Initiate the E-Verify process within three business days after hire.
- Follow required procedures, including notifying an employee in writing of any tentative nonconfirmations.
- Record the case verification number on the employee’s I-9;
- Allow DHS and SSA representatives to make periodic visits to review your E-Verify procedures and make such records available along with any materials related to the I-9 process.
- Agree not to use E-Verify for pre-employment screening, for re-verification purposes, or for screening of any employees hired before the signup date.
How does does the verification process work?
You must initiate an electronic inquiry for all new hires no later than three days after the start of employment or whenever the I-9 employment verification process is done. There are three possible results from E-Verify:
1. Confirmation: This creates a rebuttable presumption of I-9 compliance. The case verification number needs to be attached to Form I-9. This ends the process with the exception of time limited authorizations, when re-verification is necessary.
2. Tentative Nonconfirmation: This is not grounds for termination and requires follow-up steps: double checking for errors, recording case verification number, and informing employee of the right to contest nonconfirmation with SSA or DHS. If an employee doesn’t contest the nonconfirm, then employment must be terminated. If an employee contests, you must provide the employee with a referral letter to the SSA or refer to DHS. The employee has eight federal working days to resolve the discrepancy unless SSA or DHS extends the time period. After 10 days, you must query the system again.
3. Final Nonconfirmation: The employer must record the case verification number on Form I-9. If the employer does not terminate employment, there is rebuttable presumption of unlawful hire.
What are the advantages of the system?
The advantages of using E-Verify are that it allows the employer to query the government databases as to validity of documentation. For those in vulnerable industries, it saves time and training by identifying unauthorized workers.
The disadvantages of E-Verify are that there are significant problems with underlying databases, creating errors that may lead to termination of lawful U.S. workers. E-Verify is also limited to new hires and does not create a safe harbor from worksite enforcement. In addition, eight days is often not enough for employees to resolve discrepancies and there is no formal appeal process. Continued hire after final nonconfirmation will result in a rebuttable presumption of a violation and can lead to further worksite enforcement scrutiny by the DHS.
How many employers are signed up already?
As of last month, about 70,000 employers are in the program, and there are about 1,000 new signups each week. Expect to see that figure go up since the federal government mandated that all of its contractors must be registered and more states are considering mandatory E-Verify participation.
Where do I go to register?
You can get started here.