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A Tool for the Modern Age: E-Verify
Practical Law Legal Update 6-540-6445 (Approx. 4 pages)
A Tool for the Modern Age: E-Verify
by Practical Law Labor & Employment
| Published on 10 Sep 2013 • USA (National/Federal) |
E-Verify is an employment eligibility verification tool for the modern age. Use of E-Verify, the US government's free electronic work authorization verification tool, is voluntary for most employers, but required for certain federal contractors and employers in certain states. While Congress continues to debate comprehensive immigration reform, including mandatory E-Verify use by all employers, employers should be aware of what E-Verify is and how it works.
Congress continues to debate comprehensive immigration reform, including mandatory E-Verify use by all employers. E-Verify is the US government's free electronic work authorization verification tool that is a companion to the required Immigration Reform and Control Act (IRCA) Form I-9 identity and employment eligibility verification process. Currently, E-Verify is voluntary for most employers, but required for certain federal contractors and employers in certain states. Employers should know:
- If they are required by state or federal law to use E-Verify, and if so, the parameters of required use. For example, whether the employer:
- must or may use E-Verify to verify existing employees; or
- may limit E-Verify use to particular worksites.
- What their rights and obligations are if enrolled in E-Verify either as mandatory or voluntary participants.
- How E-Verify works generally, because it is likely that the system will be mandated for all employers within the next several years.
E-Verify is a relatively simple system that works by comparing the employee's information from the completed I-9 form to Social Security Administration (SSA) and Department of Homeland Security (DHS) records. Despite its simple design, E-Verify can be challenging in its application. Typically, E-Verify challenges lead to at least a preliminary finding that a worker's social security number (SSN) or work authorization cannot be immediately verified. Employees that choose to contest this tentative nonconfirmation (TNC) of their information usually must take business time (sometimes one or more work days) to visit an SSA or DHS office to clear their records. Employees receiving a TNC must be given the opportunity to contest the TNC and cannot be fired or benched while they are doing so.
The main problems employers may face are:
- Short timeframes. E-Verify cases generally must be initiated by an employee's third day of employment, the same timeframe by which I-9 forms must be completed.
- Human error in data entry. Information entered incorrectly on the I-9 or in E-Verify may result in a TNC, requiring valuable business time and resources to clear up.
- Outdated government records. Workers who have acquired permanent resident or green card status or US citizenship may be more likely to have records that have not been updated to reflect their status.
- Discrimination exposure. Under IRCA, employers must avoid discriminating against job applicants and employees in the hiring and I-9 processes. E-Verify presents an additional opportunity for employers to discriminate, even inadvertently, by creating an additional layer of verification and the possibility of an employer navigating a TNC with an employee.
More than 404,000 employers are registered in E-Verify and those employers have processed more than 20 million E-Verify cases. If E-Verify is mandated by Congress, the numbers of employers enrolled in the system will likely number in the millions, and case initiations will also mushroom. An understanding of E-Verify's requirements is important for all employers. Practical Law has many resources to help employers understand and navigate E-Verify, including: