How Are Employment Eligibility, E-verify, And The Form I-9 Different?

• Employers must post the Department of Justice “Right to Work” posters and the E-Verify “Notice of Participation” in English and Spanish.
• Employers must use E-Verify only after an applicant has accepted a job offer and completed Form I-9.

What Does E-verify Check For?

E-Verify confirms the authenticity of an individual’s identification and documents demonstrating eligibility for employment. This is done by cross-referencing the details on an employee’s Form I-9 with the records kept by the Department of Homeland Security (DHS) and the Social Security Administration (SSA).

Once all pertinent information is entered, an initial outcome will be displayed. However, in some instances, more information may be necessary. Subsequently, E-Verify generates clear and understandable results. These results will show one of two statuses, but will not reveal immigration status, citizenship status, or comparable details:

Employment Authorized

This result indicates that E-Verify requires no further action. In this case, the provided information matches the records from the DHS and SSA, verifying the individual’s employment eligibility.

Ssa Or Dhs Tentative Nonconfirmation (tnc)

A Tentative Nonconfirmation (TNC) indicates that the names provided did not match the available records, though it does not guarantee ineligibility to work in the United States. Furthermore, the employee has the right to contest the outcome. Employers should review the information submitted to E-Verify to ensure they did not input incorrect data when they created the case.

The DHS has tried to mitigate mistakes by creating a compliance division. The division has officers review data and look for patterns of probable mistakes. In addition, they contact employers and help them avoid future errors.

The DHS has stated that the “USCIS protects E-Verify against system misuse through monitoring and compliance activities, such as identifying and resolving compliance issues, notifying employers of noncompliant behaviors, and offering compliance assistance in the form of emails, phone calls, desk reviews, and site visits. These monitoring and compliance activities assist and encourage E-Verify participants to use E-Verify as required by laws, rules, regulations and agency policies applicable to E-Verify and Form I-9, Employment Eligibility Verification.”

E-Verify does not check for an individual’s citizenship or immigration status. Instead, it only indicates whether the information matches the records. As such, employers must comply with Act 274B and adhere to TNC guidelines after receiving the case’s status. This Act bans discrimination due to an individual’s immigration status or citizenship.

How Do I Sign Up For E-verify?

Although the USCIS’s checklist claims the process for signing up to E-Verify is easy, in practice, it can prove to be complicated. Despite this, there only being four steps, and the checklist contains 22 items. The process is outlined below:

1. Fill out the forms online. The forms ask questions about your business, locations, users, and how you intend to access E-Verify.
2. Provide an Electronic Signature. You must sign the terms and conditions, called the “Memorandum of Understanding” (MOU).
3. Wait for your verification from the USCIS.
4. Choose your user login and finalize your password. Then go through the tutorial and take the test.

You can sign up for E-Verify here.

How Do I Maintain I-9 Compliance?

Maintaining I-9 compliance consists of four basic steps:

1. Determine whether you are required to comply and if you need E-Verify. It may be beneficial to seek legal counsel for employment matters. While online articles, such as this one, can be helpful, they cannot provide customized advice for your situation. The regulations regarding I-9 requirements and E-Verify usage are contingent upon your company’s customers, as well as state and local laws. The number of employees your business has may also impact your circumstances.
2. Fill out Form I-9 accurately. Making mistakes while completing this form is a common compliance error, often leading to fines and penalties. Other common mistakes include: using a previous version of Form I-9, failing to complete a translator or preparer certification, and writing the wrong validated documents in the wrong fields. One of the best ways to prevent these mistakes is to use an electronic I-9 solution. This system will validate the form fields as the employee fills them out.
3. Complete the Form I-9 sections on time. You must complete and sign Section 1 by the employee’s first day at work. When completing Form I-9, employers should know that E-Verify requires them to include Social Security Numbers (SSNs). However, you cannot request to see a document that has an SSN on it, as this could violate Act 274B.
   Starting from the employee’s first day of paid work, you will have three business days to complete Section 2. The employee must present an original document or documents showing their identity and employment authorization to you or an authorized agent of your business. You or the agent must then physically examine the documents to ensure they appear genuine and relate to the person presenting them. You or your authorized agent must then sign and date Section 2, confirming the examinations.
   Section 3 does not see as much use as Section 1 or Section 2 because it applies when an employee’s employment documentation expires. The DHS strongly encourages employers to re-verify employees’ employment authorization before it expires.
4. Retain your Form I-9 documents for the required period. Employers must retain the forms for three years after the employee’s hire date or one after the employee’s termination.
5. Conduct an Audit. Employers should periodically conduct company audits of their Form I-9s. Ensuring you have the forms completed correctly, timely, and maintained copies is crucial because Immigration and Customs Enforcement (ICE) may perform an I-9 audit on your company.

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Who Is Required To Comply With E-verify?

For most employers, E-Verify is voluntary. However, some government contracts or subcontracts include the FAR E-Verify clause, which requires the involved companies to use E-Verify. Furthermore, some states have begun requiring employers to use E-Verify, including state contractors. You should contact employment legal counsel to learn whether you must use E-Verify.

Employers not required to use E-Verify can use it regardless, gaining the advantage of guaranteed compliance with Federal Act 274A. Again, this Act bans employers from hiring known unauthorized aliens.

Which Documents Are Acceptable For Form I-9?

A large number of documents are acceptable for completing Form I-9. However, which documents employees provide will depend on what they have to prove their identity and work authorization status. Sometimes, one document can verify both identity and right to work. In other cases, two documents could prove necessary. Check the table below for a list of acceptable documents.

HOW LONG DO YOU HAVE TO COMPLETE AND VERIFY DOCUMENTS FOR I-9 COMPLIANCE?

To comply with Form I-9 requirements, employees are required to complete Section 1 of the form no later than their first day of work. However, they may fill out this section during the onboarding process or alongside other paperwork on their first day of work.

Employers, on the other hand, must review the original documents presented by the employee within three business days of their first paid workday. In the event that an employee is hired for less than three days, employers must verify the documentation within one business day. By adhering to these guidelines, employers can ensure that they remain compliant with Form I-9 regulations.

How Long Am I Required To Retain And Store My I-9 Forms?

You must keep each employee’s Form I-9 along with the supporting documents for three years after their hire date or one year after their employment ends. For example, you must retain Form I-9s and supporting documentation for fourteen months, even for employees who quit after two months.

What Rights Do Employees Have As It Relates To Form I-9 And E-verify?

Employees have a right to know if their employer participates in E-Verify. As such, employers must display the Department of Justice (DOJ) “Right to Work” and E-Verify “Notice of Participation” posters in English and Spanish. Employees also have the right to know if their case resulted in a Tentative-Non Confirmation (TNC) and that they can contest it. You must also provide the employee with a Further Action Notice in English with information to resolve the TNC. If applicable, employers must include a translated copy as well.

This notice will indicate whether the Social Security Administration (SSA) or the U.S. Department of Homeland Security (DHS) issued the TNC. In addition, E-Verify generates this notice. Therefore, employers must ensure the employee receives information on contesting the TNC, such as timelines and deadlines for the process. Should an employee contest the TNC, you must provide a Referral Date Confirmation with the deadline and process for visiting the SSA or calling the DHS.

You must permit the employees to start or continue working during the E-Verify process. This period includes the time spent contesting the TNC.

You must allow the employee to present whichever documents they want that fulfill the requirements of List A or the combined provisions of List B and C. You cannot ask for specific documents.

What Are The Penalties For Violating Employment Eligibility Laws?

In most cases, employers will have ten days to correct discrepancies found in an audit. Generally, the employer can quickly fix any issues by following best practices.

Employers knowingly or repeatedly violating the rules can face significant fines and penalties. According to ICE, “Monetary penalties for knowingly hiring and continuing to employ violations range from $375 to $16,000 per violation, with repeat offenders receiving penalties, at the higher end. Penalties for substantive violations, which includes failing to produce a Form I-9, range from $110 to $1,100 per violation. In determining penalty amounts, ICE considers five factors: the size of the business, good faith effort to comply, seriousness of violation, whether the violation involved unauthorized workers, and history of previous violations.”

These penalties can become quite costly, so it is necessary to comply with I-9 regulations.

What Are My Electronic Form I-9 Options?

Using E-Verify can make complying with I-9 regulations easier in several ways, such as:

• Simplifying the E-Verify registration process: Your solution partner will likely handle the registration process. However, you must still sign the MOU.
• Preventing errors while completing the form: The electronic Form I-9 solution automatically validates the data you enter. As a result, you will avoid common mistakes, such as using the wrong document number in the wrong place or types.
• Automatically send to E-Verify: After completing Form I-9, the correct data will transfer to E-Verify. E-Verify will verify the information and return the data with the results.
• Automated TNC letters and notifications: Failure to adhere to the TNC process is a significant risk that employers face. Automating TNC letters and notifications provides a noticeable advantage for E-Verify employers. This automation immediately and easily informs them when to take action.
• Storage of Documents: The electronic I-9 solution will store and dispose of your documents for the required time. This solution helps ensure you provide the requested documents during audits while removing unnecessary paperwork.
• Reminders: You will receive reminders to re-verify documents when they are due to expire.
• ICE audit support: An electronic system will allow you to quickly locate documents and support images that you require during an audit.

Where Can I Obtain More Information Or Resources About Form I-9 And E-verify Compliance?

The best place to obtain the information you need about Form I-9 or E-VERIFY compliance is from your employment legal counsel. However, USCIS and DHS also offer documentation you can access to help you maintain I-9 compliance.

Disclaimer:

Information provided here is for educational and informational purposes only and should not constitute as legal advice. We recommend you contact your own legal counsel for any questions regarding your specific practices and compliance with applicable laws.

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