Using E-Verify with Form I-9

Since 1986, all employers of workers in the U.S. have been required to verify the identities of employees and their eligibility to work in the US. To do so, employers must submit Form I-9 for each employee within three days of their start date. In 1996, the federal government launched the E-Verify system to streamline and centralize the verification process. In this article, we’ll shed light on the E-Verify system, how to use it, and other important details employers need to know.

What is E-Verify?

E-Verify is an electronic system that compares the information on Form I-9 to federal government records, including those of the Social Security Administration (SSA) and the Department of Homeland Security (DHS). For many employers, use of E-Verify is optional. However, federal contractors are required to use the system to hire employees to work on covered contracts, and some states and local governments require its use, as well.

The following states require at least some private employers (outside of federal contractors) to use the E-Verify system:

• Alabama
• Arizona
• Florida
• Georgia
• Louisiana
• Mississippi
• North Carolina
• South Carolina
• Tennessee
• Utah

Additionally, several states require state employers and/or contractors to use E-Verify, including

• Colorado
• Idaho
• Indiana
• Michigan
• Minnesota
• Missouri
• Nebraska
• Oklahoma
• Pennsylvania
• Texas
• Virginia
• West Virginia

Because laws are constantly changing and local governments can impose their own requirements, it’s important to understand the specific laws that apply to your organization and the locations where its employees work. This includes the locations of remote employees, which may span several jurisdictions.

What if my business isn’t required to use E-Verify?

Even employers who are not required to use the system can benefit from it, as it helps ensure they remain in compliance with immigration laws. Because use of the system demonstrates a good faith effort to comply with the law, it can provide a layer of legal protection from the consequences of inadvertent infractions. Additionally, taking this small extra step to verify employees’ work eligibility helps protect jobs for authorized workers by preventing the hiring of unauthorized applicants. The trend has been for more states to require this step, so implementing it now will ensure your business won’t have to abruptly change its hiring procedures in the event it becomes mandatory at your work sites.

How does E-Verify work?

E-Verify provides an extra layer of assurance that your business is maintaining a legal workforce. Here’s how to get started:

Enroll your business in the E-Verify system.

The E-Verify process begins with enrolling in the system. This must be done in a single session, so be sure to have all the information you’ll need before getting started, and confirm that your device meets current system requirements. In addition to your company’s name and its representative’s name and contact information, you’ll need to provide

• Tax ID number and NAICS code
• Company’s mailing address and, if different, the physical address from which your company will primarily access the system
• Sites participating in E-Verify
• Total current employees
• Federal contractors must also supply their UEI

After setting up your company’s account, you’ll enter this information and then review and sign the system’s terms of use and memorandum of understanding (MOU).

Complete the I-9.

Whether or not you use E-Verify, new employees must fill out Section 1 of Form I-9 and submit it to their employer no later than their first day of work. This section must include the new hire’s name, address, and date of birth. Other contact information fields may not apply, and if so, may be left blank. If using E-Verify, the I-9 form must also include the employee’s social security number (SSN). If an employee has applied for but not yet received an SSN, the field may be left blank until they obtain it. The employee then selects and attests to their citizenship or immigration status and signs and dates this section. When submitting their I-9s, employees must also provide the documentation listed on the form.

Within three business days of your employee’s first day, you must complete Form I-9. After examining the supporting documentation provided by the employee, enter the corresponding information on the form. You don’t file Form I-9 with a government agency; instead, employers must retain the form for at least three years after hire or one year after termination (whichever is longer) and make it available for inspection if requested by federal officials. Such officials could include representatives from the DHS, the Department of Labor, or the Department of Justice.

Create a case.

With the I-9 form complete, you can use the information on the form to create a case in the E-Verify system. In some cases, the system will ask you to compare a photo that appears on the employee’s documentation to one the system displays to ensure the document is genuine and belongs to the employee. After all information is entered, the system typically returns an initial case result within seconds. In many cases, the result will be “employment authorized,” and no further action is needed. Other possible results include the following:

• E-Verify needs more time indicates the case has been referred to DHS for verification.
• Tentative nonconfirmation (mismatch) shows that the information provided did not match federal records. You’ll receive a Further Action Notice with details about next steps. You must privately review this with the employee and provide them an opportunity to resolve the mismatch
• Case in continuance lets you know the employee has contacted DHS or visited an SSA field office, and a final case result is pending.
• Close case and resubmit means you must close the case and create a new one for the employee.
• Final nonconfirmation indicates E-Verify was unable to confirm employment eligibility.

If an employee receives a tentative nonconfirmation, they have up to 10 business days after this result to notify you if they will attempt to resolve the issue. They then have eight business days to contact the appropriate agency. You must allow them to continue working and may not take any adverse action against them while the resolution is in process. If the employee doesn’t notify you of their decision within the 10-day window, then you should close the case in E-Verify, which will then issue a final nonconfirmation.

What do employers need to know about employee rights when verifying work eligibility?

While it’s important to verify that your employees are legally eligible to work in the U.S., it’s equally important to follow the rules for doing so. Form I-9 includes specific guidance about what forms of documentation are acceptable, and employers may not deviate from these instructions. You may not ask your employees to provide documentation to verify the information they enter in Section 1 or to demand a specific form of supporting documentation. While documentation must not be expired, you should not reject any document because of an upcoming expiration date.

Additionally, it’s important to understand that employers are generally forbidden from discriminating against eligible applicants or employees based on their citizenship, national origin, or immigration status. Employers using E-Verify must post notices informing employees of their rights, including the Immigrant and Employee Rights “Right to Work” poster and the E-Verify Participation poster.

Streamlining Your HR Practices

Managing the intricacies of HR matters like verifying employment eligibility can be daunting for small and medium-sized businesses. Outsourcing these tasks to back-office experts can save companies time and money while reducing the risk of noncompliance. Since 2005, Employer Solutions Staffing Group has been providing reliable outsourced back-office support. Since 2019 ESSG has integrated E-Verify within our onboarding and payroll software to ensure compliance while giving the user a seamless experience without creating additional system logins to complete the new hire process. With dedicated professionals handling critical but time-consuming administrative tasks, our partner businesses gain the freedom to stay focused on what they do best. See how we’ve helped businesses like yours reach new heights in our case studies, or browse our blog for more back-office tips.