E-Verify Implementation Strategies

An employer may not initiate a query on an employee until after the employee accepts the job offer and the employee and employer have completed the Form I-9.

An employer must initiate a query within three (3) business days of the actual job start date.

An employer may NOT prescreen applicants or delay training or the start date based upon a tentative non-confirmation or a delay in the receipt of a confirmation of employment authorization.

An employer may not verify selectively and MUST verify all new hires if participating in E-Verify.

The E-Verify program may not be used to:

  • Prescreen applicants for employment
  • Check employees hired before the signing of the Memorandum of Understanding (MOU) (with the exception of those subject to the Federal Acquisition Regulation) or those with temporary work authorization requiring re-verification.

After a new hire completes his/her Form I-9, the employer must submit a query with the following information:

  1. Employee’s name and date of birth
  2. Social Security Number (SSN)
  3. Employee’s citizenship status
  4. “A” number or I-94 number, if applicable

Type of documents provided on Form I-9 to establish work authorization status include:

  1. Proof of identity & its expiration date, if applicable
  2. Documents presented for I-9 “identification only” purposes (documents from “List B”) must contain a photograph
  3. E-Verify will send a response to the initial query within seconds of submitting a query

When an employer verifies work authorization with E-Verify, it establishes a rebuttable presumption that it has not knowingly hired unauthorized alien.

An employer’s participation in the E-Verify program does not provide “safe harbor” from worksite enforcement.

Employees Without Social Security Numbers

  • Employees who do not have social security numbers may not be run through E-Verify.
  • If the employer completes Form I-9 and has verified work authorization, an employee may work temporarily without a social security number.
  • An employer should run an E-Verify query once the employee receives a social security number (but should note on the Form I-9 why the E-Verify query was delayed.)
  • An employer cannot ask employees to provide specific documents at any time during the Form I-9 process, except for List B documents which must contain a photo for E-Verify.
  • An employer should also ensure accurate entry of an employee’s information.
  • E-Verify uses month/day/year format.
  • If the employer fails to receive an immediate response, E-Verify provides a page to review information entered and correct errors.
  • An employer must notify job applicants of its use of E-Verify. The employer is required to post the notice provided by the DHS indicating participation in E-Verify (as well as anti-discrimination notice regarding Immigration-Related Unfair Employment Practices.)

Tentative Nonconfirmation (TNC)

Tentative Nonconfirmation (TNC) occurs when employee’s information cannot be immediately confirmed.  A TNC may be issued either by the Social Security Administration (SSA) or the Department of Homeland Security (DHS).  A TNC does not necessarily mean that the employee is not work authorized or that the information provided was incorrect.

Additional guidance for the employer on how to proceed with a TNC is outlined in the E-Verify User Guide & on-line tutorial available at www.uscis.gov.

  • An employer must provide the employee with a copy of the referral letter issued by E-Verify. The employee must be given eight (8) federal government workdays to contact the appropriate agency to contest.
  • An employer may not take any adverse action against the employee (i.e. firing, suspending, withholding pay or training, etc.) because an employee contests the mismatch.
  • If the TNC is “SSA-based”, the employee has the option of visiting an SSA field office to update his/her records.
  • If employee is a naturalized citizen, s/he may call USCIS directly to resolve a TNC.