We have spent the past three weeks expounding on the I-9 . Click here, here and here for review. We know that understanding how to properly complete an I-9 (and avoid hefty fines during an audit) is a source of angst for many otherwise knowledgeable, well-meaning and compliant employers. The United States Customs and Immigration Service (USCIS) has created a tool that allows employers to receive confirmation that the employee is employment authorized, aka E-Verify. This week we will talk about the who, what, where, and when of E-Verify. Let’s start with the “what”. E-Verify is a free electronic program, authorized by the Illegal Immigration and Immigrant Responsibility Act of 1996 (IIRIRA) designed to verify employee eligibility to work in the United States. Specifically, employers submit information taken from the I-9 and enter it into the E-Verify program to the Social Security Administration and USCIS to see if the information matches government records and thereby determine whether the worker is authorized to work in the United States. The US Department of Homeland Security, USCIS Verification Division and the Social Security Administration both administer E-Verify. While the federal government does not require most employers to use E-Verify, some states have passed such laws. Employers therefore should check to see if the state(s) in which they employ people require participation in E-Verify; otherwise participation in E-Verify is optional.
Let’s now look at the three main processes with E-Verify: Enrollment preparation, Enrollment and Verification.
Pre-Enrollment: This may be the most important phase. While enrollment itself usually only takes between 15 and 30 minutes, employers must complete the entire process in one website session. Employers should also check to make sure they are not already enrolled, because if they are, enrollment will then be delayed while the USCIS reviews the employer’s request and enrollment status. The USCIS recommends that employers take the following pre-enrollment steps:
- Review the E-Verify Memorandum of Understanding (MOU), which you can find here, to get familiar with the employer’s responsibilities;
- Decide which hiring sites (offices where employees are hired and complete their I-9’s) will participate in E-Verify: Participating hiring sites must use E-Verify for every newly hired employee at that site. Employers who are not sure if they can or want to use E-Verify for every newly hired employee at a particular site should not include that site as a participant.
- Decide from which location(s) information will actually be entered into the E-Verify Program: These are known as verification locations. While an employer may hire out of several locations, it may choose to have its HR staff in its central office actually run the information through E-Verify. The central office would then be the sole verification location. If all hiring sites ran their own cases through E-Verify, then those hiring sites would also be verification locations.
- Decide which staff will need to access E-Verify.
- Ascertain which if any changes to I-9 processes and procedures may be needed in order to participate.
- Have the following information: company name, “doing business as” name, if applicable, contact information for whoever will sign the MOU, address, including county of the location from which the company will access E-Verify and the name of the designated program administrator, total number of employees for all company hiring sites that will participate, the first 3 digits of the company’s primary North American Industry Classification System (NAICS) code (which USCIS can help you find).
Completing the above steps will largely depend on where employees complete the I-9, and whether they do so on their first day of work or after hire but before the first day of work; whether the employer outsources its I-9 processing; whether it forward its I-9s to a central location; whether the location where the I-9 is completed has internet access.
Enrollment: This process involves providing USCIS with basic information and agreeing to program rules. Here are the basic steps:
- Visit the enrollment website, read and agree to the terms, review the enrollment checklist making sure to have all required information before clicking “Begin E-Verify Enrollment”;
- Answer four short questions to determine which access method is appropriate and then review and confirm the access method to ensure that it meets the company’s needs: The four access methods are employer, E-Verify employer agent, corporate administrator and Web services. Each method includes an explanation and a question the employer must answer in order to determine which method best meets the company’s needs.
- Select the correct organization designation: Is the company a federal contractor with or without the Federal Acquisition Regulation (FAR) E-Verify clause or a federal, state or local government office? If yes, there may be additional related questions to answer. If not, the employer should select ‘None of these categories apply’.
- Review and agree to the MOU and enter MOU signatory information: Employers must provide contact information for the MOU signatory. The signatory can also be the E-Verify program administrator.
- Enter company information and enter or select NAICS Code: Company information includes name, parent organization, if any, physical verification location, mailing address, employer identification number (EIN) and total number of employees. Employers who do not know their company’s NAICS code can leave the field blank and click “Generate NAICS code”.
- Provide hiring site information, including the number of hiring sites that will participate in E-Verify for each state. Again, employers can choose to participate on a site-by-site basis, but must use E-Verify for all newly hired employees at each participating site.
- Register E-Verify Program Administrators: Employers may register as many program administrators as it wants, but must register at least one.
- Review and Certify Information, print signed MOU: Check for errors, change any incorrect information. Employers should keep a signed copy of the MOU and share it with their human resources manager, legal counsel and any other appropriate staff.
Verification: This phase has three basic steps:
- Create a case: I-9 completion and case creation must occur no later than three business days after the employee begins work for pay. E-Verify will guide the employer through a series of questions, beginning with the employee’s citizenship attestation, document types(s) then name, date of birth, Social Security Number and Alien or I-94 number for non-citizens, and, in some cases, document number and expiration date. If E-Verify cannot initially match the information, it will prompt the employer to review and correct the information. Usually it will otherwise provide an initial response within a matter of seconds
- Get results: Usually, E-Verify instantly verifies the employee’s eligibility, in which case the employer can continue to the last step and close the case. If E-Verify cannot confirm work authorization it will either return a “DHS Verification in Process” or “Tentative Nonconfirmation” (TNC) response. In the first case, the employer must check with E-Verify until receiving an update, within 24 hours to three business days; in the second case, it means that either SSA or DHS could not confirm that the employee’s information matched its records. The employee will then have to call or visit the appropriate agency to find out how to resolve the discrepancy, or in the case of a photo mismatch, the employer may need to scan and upload or express mail at its expense, a copy of the document to DHS.
- Close the Case: Upon receipt of a verification result, regardless the actual result, the employer must close the case so that E-Verify can compile and maintain statistics on usage and outcomes. E-Verify will ask if the employee is still working for the employer and will then instruct the employer to choose the reason for closing the case. Upon closing the case, the employer must either record the case verification number on the employee’s Form I-9 or print the case details and keep it on file with the employee’s Form I-9.
So, is that enough information for you? No? For those of you who want to know even more about E-Verify, click here. With all that, what are the advantages of using E-Verify? Is there a downside? Let’s talk about that next week!
Do you use staffing agencies to meet your staffing requirements? If so, click here to read my latest post about how the ADA applies to them.
Disclaimer: Contents of this post are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent local employment counsel on any issues discussed here.
Click here to learn more about Janette Levey Frisch, author of The Emplawyerologist.
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