by Sally Colby
Delycia Hofmann, Department of Homeland Security, Outreach Division, encourages employers to use a program that’s free and relatively easy to use. She explained E-Verify is an internet-based system that allows any U.S. employer to electronically verify the employment eligibility of its newly hired employees.
E-Verify is for new hires only — existing employees cannot be run through the system. “The day you enroll, the day we approve your account, from that point forward, any new hire you bring on board is who you are to run on E-verify,” said Hofmann. “You will not run your existing employees through unless you are a qualifying federal contractor with a FAR (Federal Acquisition Regulation) E-Verify clause.”
Although E-Verify verifies employment eligibility, it does not provide immigration status. “We get a lot of questions about that,” said Hofmann. “DHS, or Department of Homeland Security, with USCIS, has a division called the SAVE program. SAVE stands for Systematic Alien Verification for Entitlement. This is another program, a web-based service, that helps any federal, state or local benefit-issuing agency determine the immigrant status of a benefit seeker.” An example would be the new arrival who is trying to get a drivers license or social security card — the agency would run the person through SAVE to check immigration status.
Some of the reasons employers are choosing to use E-Verify, even though it is not federally mandated, include ensuring a legal workforce and protecting jobs for all legal workers. “E-Verify also helps deter document and identity fraud,” said Hofmann. “We built several features into the E-Verify system that help do that.”
E-Verify cannot be used to prescreen employees. Employers must make a firm job offer and the position must be accepted by the new hire prior to creating a new E-Verify case. “A case is the Form I-9 information,” said Hofmann. “The form I-9 is already a federal requirement for all employers. If you have employees, you must have that I-9 on file for them. With E-Verify, you are able to take the information the employee provided on their I-9, including the documents you’re going to review, and you can balance that against millions of government records to ensure everything checks out.”
Hofmann noted as of Sept. 18, 2017, the revised E-Verify form must be used, and is the only valid version that is acceptable. “Look at the revision date at the bottom of the I-9,” she said. “It will have July 17, 2017 end date.”
Since E-Verify is based on the Form I-9, employers should already have that form on file for all current employees, with the exception of employees hired on or before Nov. 6, 1986. “For former and existing employees,” said Hofmann, “employers should continue to retain and store previously completed forms according to the guidance provided on I-9.”
Hofmann says employers can delegate the authority to another responsible agent to complete the Form I-9, however, you as the employer are still liable for any errors on such forms. So if someone is designated to act on your behalf as your agent, you, as the employer, are still liable for any errors. Hofmann suggests refresher training on I-9 if agents aren’t current on the procedure.
The form I-9 itself does not require the employee’s social security number, but once an employer is using E-Verify, the Form I-9 social security number information is required on the form. If a new hire provides an email address, it’s an optional field on the I-9. However, if an employee provides a personal email address on the I-9, that email address must be entered into E-Verify.
A list of acceptable required documents should be provided to the employee, and the employee can choose which documents to provide from list A or combination list B and C documents. “Once you become an E-Verify user and you enroll your company, you can only accept any list B document from your new hire that contains a photograph,” said Hofmann. “That’s a change. And that’s only if they choose to present a list B document. Make sure you make copies and retain copies if your employee chooses to present one of the three photo-matching documents. So if your new hire presents an EAD (Employment Authorization Document) card, a green card or a U.S. passport, per E-Verify guidance, you must make a photocopy of that because you have a photo-matching feature in E-Verify.” There is no requirement to photocopy supporting documentation such as birth certificates or drivers’ licenses.
Hofmann explained that Section 3 of the form I-9 is for reverification of the employee’s expiring work eligibility. If there is an employee whose work authorization document is expiring, E-Verify sends a reminder that the expiration date is close, and that the employee should provide proof of current work authorization. “Dismiss the reminder and all you need to do is update Section 3,” said Hofmann. “You will not create a new case in E-Verify.”
Employees who provide their personal email address via E-Verify will receive courtesy emails from E-Verify alerting them that their employer ran their name through the system and that any additional action would be done through the employer. It doesn’t take the place of the tentative non-confirmation process — it just provides the employee with the status of the case and informs the employee that they should report to you as the employer. “The email address should be the personal or work email address of the employee,” said Hofmann. “It should not be the email of the HR specialist — the purpose is so the employee can receive the courtesy emails.”
The earliest a case can be created is when a firm job offer is made and accepted by the applicant. “Then you have the employee fill out the I-9, and then you can run them through E-Verify,” said Hofmann. “E-Verify allows you to enter a hire date up to 365 days in the future. So if you have someone you have spent time recruiting and they finally sign on with your company, but they can’t start for several months, once you make the offer and they accept, you can run them even if the hire date is months down the road. Enter the date they begin work for pay.”
There’s a three-day rule for creating cases: if new hire starts on Monday, the employer has until Thursday to create a case. “If you’re past the three days, E-Verify is going to prompt you to create a case as soon as possible,” said Hofmann. “If you’re past the three days, the system is going to ask you to provide a reason for the delay.”
Hofmann says once the case is entered, it takes merely seconds for record checks. “Ninety-eight percent of the time, you’ll get ‘Employment Authorized,’” said Hofmann. “If you get a Tentative Nonconfirmation (TNC), it doesn’t necessarily mean that employee is not authorized to work. All it means is that there’s a mismatch in the information that you put in from the I-9.”
Although a TNC can be the result of information mismatch between the I-9 and a government entity such as Social Security Administration (SSA) or Department of Homeland Security, there are other reasons a TNC is returned. In some cases, the employee may not have informed the SSA of a legal name change, or that he or she has become a naturalized citizen. Another reason for a TNC is that the employer made an error when entering data — just one incorrect number or a misspelled name can create a TNC.
“It’s important to not assume that the employee is not authorized to work,” said Hofmann, explaining how to handle a TNC. “If a TNC is returned, review the options with the employee and determine whether the employee wants to contest the TNC. If an employee chooses to not contest the TNC, they are provided with a referral date confirmation. At this point, the employer has the legal right to terminate the employee because the employee has chosen to not resolve the mismatch.”
The employee has eight days to contest a TNC, but final resolution may not be resolved in this time. During that process, the employee should continue to work. “Do not send them home without pay, do not withhold their training, and do not terminate them,” said Hofmann. “Federal law prohibits employers from terminating because of a TNC.” It’s important that all meetings with employees for any part of the E-Verify process are done in confidence.
Hofmann reminds employers that E-Verify must not be used to pre-screen applicants — a firm offer must be made and accepted before E-Verify can be initiated. “You cannot use E-Verify selectively,” said Hofmann. “The employer must not influence an employee’s decision on whether they want to contest a TNC. Don’t say, ‘leave work for a while, and when it’s all said and done, you can come back to work.”
Hofmann suggests employers subscribe to the e-newsletter E-Verify Connection and to visit USCIS websites such as I-9 Central, E-Verify, Office of Citizenship and related topics.