It is vital for employers to understand E-Verify in order to determine whether to utilize it and whether it is required for each location. E-Verify is an Internet-based employment verification system which matches information from employees’ I-9 forms with databases of the Social Security Administration (SSA), Department of Homeland Security (DHS), the Department of State, and a few states’ driver’s licenses/identifications. It is important to remember E-Verify is not a pre-screening tool in the application process. An employer may not submit an inquiry to E-Verify until after an employee is hired. Furthermore, an employer is strictly prohibited from using E-Verify to verify existing employees.
In order to utilize E-Verify, an employer must sign an appropriate Memorandum of Understanding (MOU) with DHS. An employer must also post notices provided by DHS announcing its participation in E-Verify. Although most employers detest required government-issued posters, E-Verify posters are an employer’s friend because it informs prospective applicants without legal status that they will be subject to E-Verify.
The initial step in E-Verify is the same as I-9 verification. The employee and employer complete and sign the I-9 form. The employer then logs onto the E-Verify website and enters the I-9 data. If the employee is verified, the system will generate a confirmation number.
If instead a Notice of Tentative Non-Confirmation (“TNC”) is received, the employer must ask the employee whether he wants to contest the Notice. If the employee does not contest the TNC, the employer should advise the employee that he is terminated due to ineligibility for employment. If the employee chooses to contest the TNC notice, the employer should advise the employee to contact the SSA or the DHS within eight federal business days to resolve the discrepancy. And remember, an employer is prohibited from discharging or disciplining the employee who is contesting the TNC, unless the employer obtains independent knowledge that the employee is not authorized to work.
If the employee contests the TNC, there are four possible outcomes: (1) “Authorization” notice, meaning the employee may continue employment; (2) Final Non-Confirmation notice, meaning the employee should be terminated; (3) DHS Tentative Non-Confirmation, which the employee may contest in a similar manner as a SSA Tentative Non-Confirmation; or (4) “Review and Update Employee Data” message, meaning there will be further investigation.