What Is E-Verify?

E-Verify, which was once known at the “Basic Pilot Program,” is a web based system that employers may use to confirm the employment eligibility of newly hired employees.   It came into existence through the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA).  The way E-Verify works is that it compares personal information from the databases maintained by the Social Security Administration (“SSA”) and the Department of Homeland (“DHS”) to the personal information submitted by a new employee in his or her I-9 Form.  E-Verify attempts to “match” all the data.  For instance, if a person’s name and social security number does not match with the data maintained by SSA, the E-Verify system will return a notice of non confirmation.  One of the purposes of E-Verify is to weed out attempts by unauthorized workers to use false Social Security numbers, or numbers belonging to another person. To this end, E-Verify incorporated a photo tool in September 2007 that enables employers to match the photo on an employee’s Employment Authorization Document (“EAD”) or a Permanent Residence Card to the photo that USCIS has on file for that employee.  The tool enhances the employer’s ability to detect document fraud.

USCIS administers E-Verify, in partnership with DHS and SSA.  E-Verify was first implemented as a experimental pilot program.  In the last few years, it has developed into a robust system which has gained greater acceptance.  As of June 2008, the federal government has required that government contractors use E-Verify to screen their employees.  Some states now require that all public and even private employers use E-Verify.  Despite criticism of the program from different groups, the trend is that E-Verify will gain even greater acceptance in the future.  It is not outside the realm of possibility that E-Verify will at some point in the future become mandatory for all employers in the United States.

Is E-Verify Burdensome to Use?

In my opinion, no, unless you think logging into a webpage and typing in some basic information about an employee to be burdensome.  E-Verify only takes 3-5 seconds to return with a confirmation or non-confirmation.  About 90-95% of all queries are instantly verified.

Does E-Verify Replace the I-9 Verification Process?

No.  Even if an employer uses E-Verify, all new employees must still undergo the I-9 verification process as prescribed by current DHS regulations.  In order to properly use E-Verify, the employer submits the personal information that the employee provided in his or her I-9 form.

How Does E-Verify Work?

The employer enters the personal information that an employee provided on his or her I-9 Form to the E-Verify website.   The E-Verify website will return one of three results:

• “Employment Authorized,” which means all personal information matches with the SSA and DHS databases and the employee is confirmed to be eligible to work in the U.S.  E-Verify will generate a verification number that the employer should note on the employee’s I-9 Form.
• “SSA Tentative Non-Confirmation,” which means the SSA database shows a discrepancy between the employee’s name and Social Security number.  The employee will have an opportunity to challenge the results in order to resolve the discrepancy.  The employee has eight days to challenge the results with either the SSA or DHS.  He or she is permitted to continue working while the challenge is being processed.  If the employee does not challenge the results, the employer may resolve the case by terminating the employee.
• “DHS Verification in Process,” which means the inquiry is taking longer to process.  Generally, E-Verify will respond within 24 hours with either an Employment Authorized or Tentative Non-Confirmation.

May E-Verify Be Used Only for Certain Employees?

No.  E-Verify is an all or nothing proposition.  Once signed onto the system, an employer must use E-Verify for all new employees at its worksite.  An employer may not reserve its use for just “foreign-looking” employees.  To do so would be a form of discrimination which may lead to the employer being sued by the employee, or the employer be found in violation of the terms of the E-Verify usage contract.  Participating employers are required to post a notice in an area visible to prospective employees that the company is an E-Verify employer.  Also, the employer must post an anti-discrimination notice promulgated by the Office of Special Counsel for Immigration (under the Department of Justice) which advises prospective employees of their rights.

What Type of Information Does an Employer Submit to the E-Verify System?

The employer submits a query to the E-Verify system that includes the following information that the employee provided on his or her I-9 Form:

• The employee’s name and date of birth
• The Social Security Number (SSN)
• The Citizenship or immigration status he or she attests to
• The Alien Registration number or I-94 number, if applicable
• The Type of document provided on the Form I-9 to establish work authorization status, and
• The employee’s proof of identity, and its expiration date, if applicable

Does An Employer Need to Verify Existing Employees With E-Verify?

No.  An employer many only verify new employees (those who are hired after the employer signed up) with E-Verify.  An employer may not use the program to verify existing employees.  

Can an Employer Leave the E-Verify Program?

Yes, the federal government does not require most employers to use E-Verify.   Once signed up, an employer may give the government 30 days notice that it intends to discontinue the program’s use.  However, some states require employers to use E-Verify.   Employers leaving the E-Verify program in such states would be problematic.