E-Verify was established in 1997 as a pilot program to prevent people who have violated immigration laws from legally procuring employment. It is a valuable tool for employers to confirm that their employees are authorized to work in the U.S., and it is closely linked to the I-9 form process. However, the two are distinctly different. The purpose of the I-9 form is to obtain documentation from a new employee that can be used to verify their identity and work authorization. The E-Verify process takes the data from these documents, compares them to federal databases and determines whether the employee’s documentation is viable.

The U.S. Department of Homeland Security (DHS) is responsible for running and maintaining the E-Verity process, which is all completed online. E-Verify, unlike the I-9 form, is voluntary for most employers, though there are exceptions. They include:

  • Federal employees – In September 2007, E-Verify was made mandatory for federal employees. Specifically, a directive from the Office of Management and Budget required the use of E-Verity by all federal government agencies.
  • Federal contractors – On September 8, 2009, employers who have obtained a federal contract must use E-Verify to confirm their employees’ work authorization if their contract contains a Federal Acquisition Regulation E-Verity clause. This includes any employees who are directly involved with work associated with the contract, and for the company’s new hires, whether they are working on a federal contract or not.
  • Employees in some states – In all, 16 states require employers to utilize E-Verify, at least to some degree. This is according to a Center for Immigration Studies survey. Of those 16 states, Arizona, South Carolina, North Carolina, Georgia, Mississippi, and Alabama require nearly all of their businesses to use E-Verify to confirm employee work authorization. Five more states, including Indiana, Oklahoma, Missouri, Nebraska and Virginia, require public employers and public contractors to use E-Verify. Three states, including Minnesota, Louisiana and Minnesota, require only public contractors to utilize E-Verify. One state, Idaho, only requires public employers to use the system. A few more states encourage the use of E-Verify, though they provide alternate means of confirming work authorization.Arizona’s laws concerning E-Verify were tested in 2011, with the U.S. Supreme Court eventually rejecting a suit that challenged it. In effect, this ruling asserted that states have the right to mandate employer use of E-Verify.This is not a fully comprehensive list, as some states have executive orders in place that require some degree of E-Verify use. In Texas, for example, Governor Rick Perry issued an executive order (Executive Order RP 80) that mandates all agencies under the governor’s direction to verify all current and prospective employees with E-Verify. RP 80 also requires all agencies under the governor’s direction to require any contractor they enter into business with to utilize E-Verify for their employees.

What Happens If An Employee Is Flagged By E-Verify?

During E-Verification, DHS compares the data from the employee’s submitted documentation with data the federal government has on file for the individual. If the provided information matches up with federal databases, E-Verify returns a positive result and the employer can assume their employee is properly authorized.

If, however, E-Verify determines there is a discrepancy between the given documentation and DHS, Department of State (DOS) or Social Security Administration (SSA) databases, a notice is sent to the employer. This is known as a Tentative Nonconfirmation (TNC). Employers that are sent a TNC must inform the employee in private and allow the employee a chance to contest the TNC.

Employees have eight federal business days to do so, and may have to visit a local SSA branch to resolve their issue. It is common for minor discrepancies to be flagged by E-Verify, such as a name change. If the employee chooses not to contest the TNC, or if DHS sends a Final Nonconfirmation result, which asserts that the employee’s work authorization cannot be confirmed, the employer may terminate the employee.

Why Should Companies Take The E-Verify And I-9 Processes Seriously?

In recent years, Immigration and Customs Enforcement (ICE) has increased enforcement of work authorization requirements, demanding more companies than ever to submit to I-9 audits and E-Verify compliance. According to the USCIS Verification Division, in 2010, 16,000 E-Verify compliance letters were issued. In 2011, 13,000 more letters were issued, and more than 26,000 e-mails were delivered to employers.

These numbers have continued to increase with time, so employers must perfect their I-9 and E-Verify processes. Failure to comply in either regard, assuming E-Verify is mandatory for the employer, can result in punishing fines (that trigger with each infraction, meaning the total sum can quickly overwhelm a business) or potential loss of business license.

As such, turning to an expert that can help companies complete the I-9 form or E-Verify process makes financial sense. Avoiding the devastating fees that may come from an audit makes it well worth the cost of a business hiring help for the filing process.