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E-Verify: Implementation for employers

E-Verify is an Internet-based system operated by the Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA).

The online system is a free program that allows an employer to electronically verify employment eligibility of newly hired employees.

While participation in E-Verify is not mandatory for most businesses, some companies may be required by state law or federal regulation to use the program depending on its number of employees.

Learn more about enrolling in E-Verify

E-Verify implementation for employers

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

An employer must initiate a query within three 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 based on a delay in the receipt of a confirmation of employment authorization.

An employer may not verify employees 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) (except for those subject to the Federal Acquisition Regulation) or those with temporary work authorization requiring re-verification.

An employer must submit a query with the following information after a new hire completes their Form I-9:

  • Proof of identity and its expiration date, if applicable
  • Documents presented for I-9 “identification only” purposes (documents from “List B”) must contain a photograph

E-Verify will send a response to the initial query within seconds of submission.

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

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

Employees without social security numbers

Employers may not use E-Verify to verify eligibility for new hires who do not have social security numbers. Additionally:

  • An employee may work temporarily without a social security number, if the employer completes the Form I-9 and has verified work authorization.
  • 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).

Tentative non-confirmation (TNC)

Tentative non-confirmation (TNC) occurs when an employee’s information cannot be immediately confirmed to establish employment eligibility.

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 authorized to work, or that the information provided was incorrect.  It simply pauses the process to provide additional time to collect documentation or resolve issues, to ultimately confirm or deny eligibility for employment.

If a TNC is received, an employer:

  • Must provide the employee with a copy of the referral letter issued by E-Verify. The employee must be given eight federal government workdays to contact the appropriate agency to contest.
  • May not take any adverse action against the employee (i.e. firing, suspending, withholding pay or training, etc.) because an employee contests the mismatch.

The employee has the option of visiting an SSA field office to update their records If the TNC is “SSA-based.”

An employee can call USCIS directly to resolve a TNC if they are a naturalized citizen.

Additional guidance for the employer about proceeding with a TNC can be found here.

Additional E-Verify details

Below are some additional key details about E-Verify:

  • An employer cannot ask employees to provide specific documents at any time during the Form I-9 process. The employee retains the discretion to determine what List B documents to provide, 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 an anti-discrimination notice regarding Immigration-Related Unfair Employment Practices).

As always, please do not hesitate to contact Garfinkel Immigration Law Firm at 704-442-8000 or via email with any questions.

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