Is E-Verify a Background Check?

Courtesy of the 1986 Immigration Reform and Control Act, businesses nationwide are required to both verify and authenticate their employees’ legal eligibility to work in America. The legally required document which helps verify an employee’s eligibility to work is the Form I-9. An often-required complement to the Form I-9 is the E-Verify system. While both components deal with the legality of work eligibility, neither the Form I-9 nor E-Verify constitutes a criminal background check.

The Form I-9 is a legal document provided by the government that must be completed by both employers and employees within the proper timelines stated on the form. The form gathers important personal information from the employee regarding work eligibility, requires employers to verify identification documents provided by the employee, and handles proper documentation for eligibility follow up and rehires. The Form I-9 cannot be utilized to perform a background check.

E-Verify is, in some cases, an optional add-on service that complements the Form I-9. The system allows enrolled employers to match employees’ Form I-9 information against records accessible by the Department of Homeland Security and the Social Security Administration. E-Verify is not to be used for a background check as it only verifies work eligibility and does not review a potential employee’s criminal history.

A company that requires its employees to have a legal work eligibility status and a background check should be Form I-9 compliant, consider utilizing E-Verify, and do a thorough background check or hire an employment screening service.

How E-Verify Works

The E-Verify system compares an employee’s Form I-9 information against records accessible by the United States government. Without the Form I-9, there would be no basis of information for E-Verify to compare. For that reason, to understand how E-Verify works one must also understand the Form I-9.

The Form I-9 is a legal document that helps establish an individual’s eligibility to work in the United States. There are three main sections to this form:

  • Section 1: This section of the Form I-9 requires employees to fill out basic information and sign attesting that the information is true. Any false information provided by the employee can result in perjury penalties. Employers are responsible for ensuring that employees fill out the form completely. This section must be completed by an employee’s first day of employment.
  • Section 2: The second section of the form requires employers to examine and vouch in good faith for the authenticity of Form I-9 identification documents provided by the employee. If any identification documents are found to be fraudulent, perjury charges will most likely apply. This section of the form must be completed within three days of an individual’s first day of work.
  • Section 3: This last section of the form is dedicated primarily for reverification and rehire purposes. It must be completed by employers if an employee’s work authorization is expired, his/her name has legally changed, or if he/she is rehired within three years of the date listed on the Form I-9.

Although it requires only basic information, the Form I-9 can be a complex document for employees and employers to work through. Because of that, the United States Citizenship and Immigration Services has compiled a how-to guide called the Handbook for Employers M-274 as a resource. In addition to using this handbook, many companies get help by enlisting the help of digital I-9 compliancy software programs. Although the software may differ slightly from provider to provider, in general these programs help employers with the goal of reducing human error on the form and providing timely action reminders that aid with Form I-9 compliancy.  The more robust I-9 software programs will offer automatic E-Verify submission as an option through the software.

Once the form has been completed, this is where E-Verify comes into play. Employers can use E-Verify to compare the Form I-9 information against government records. In addition to the confirmation of this information, E-Verify may often be able to access a photo of the employee for employers to compare against photo identification the employee provided.

Things to Know About E-Verify

The E-Verify system is straightforward and user-friendly and can be accessed via the internet. For a company to utilize the E-Verify system they only need to be enrolled. Some I-9 software programs provide easy enrollment through the software, which lightens the burden of enrollment for the employer.  In these cases, the software provider enrolls the employer into E-Verify and then serves as the employer’s designated agent.

Enrollment in the E-Verify system is free and is open to businesses in all of the fifty states as well as Puerto Rico, the District of Columbia, the U.S. Virgin Islands, the Commonwealth of Northern Mariana Islands, and Guam.

While an employer’s enrollment in E-Verify is still largely considered to be optional, it is becoming increasingly required. Although its usage is not yet universal, the system’s use does seem to be trending in that direction.

There are specific instances in which businesses must enroll in the E-Verify system.  Some states simply require by law that businesses located within the state lines must enroll. Employers involved in a court situation may be legally required to enroll in E-Verify after a legal ruling is handed down. Lastly, employers participating in federal contracts or subcontracts that contain the Federal Acquisition Regulation (FAR) E-Verify clause must also enroll.

Those companies that utilize E-Verify can choose to navigate the system on their own or enlist the help of an E-Verify employer agent. These agents act as a liaison between E-Verify and the company to determine an employee’s work eligibility and can also be useful in helping employers comply with employment laws. While employers who use E-Verify employer agents say they can save companies from a staff shortage and valuable time, the federal government does not certify or regulate their fees.

E-Verify Can Help With I-9 Compliance

Solid information gathered by E-Verify can help employers authenticate an employee’s eligibility to work in the United States and keep their business Form I-9 compliant – adding an extra layer of protection.

Being I-9 compliant is simply the law. If a company is found not to be compliant during an audit, generally they are given a short window of roughly ten days to make appropriate changes. However, those corrections do not necessarily exempt the company from penalty for those violations.  The purposeful or accidental actions that interfere with compliancy can be considered a criminal or civil violation that may result in substantial fines.

Criminal violations may be issued if a documented pattern of fee-based referring, recruiting, or hiring of individuals unauthorized to work in the United States is found.

Civil violations generally pertain to actions such as committing document fraud or abuse, discriminating, being noncompliant with employment verification, hiring or continuing to employ an unauthorized worker, or notifying authorities of follow up confirmation for an employee’s eligibility to work.

For businesses that are looking to avoid the headaches that noncompliance can cause, it is important to establish a set of best practices that should include proper Form I-9 protocol, the E-Verify system, and digital I-9 compliance software.

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