What is E-Verify?

An important part of operating a business in the United States is ensuring that the people you hire are legally allowed to work here. While requirements vary by state and local jurisdictions, many mandate the use of a system known as E-Verify to validate worker eligibility. Noncompliance can lead to fines and penalties for organizations and, at times, personally for leaders. That makes it essential for all organizations to understand what E-Verify is and how it applies to them.

What is E-Verify

Back in 1986, the Reagan Administration signed the Immigration Reform and Control Act (IRCS) into law. It required employers to confirm that all newly hired workers were eligible to work in the United States and created the I-9 form to facilitate this process. Over the years, many updates were made to the system, further engaging agencies such as the US Citizenship and Immigration Service (USCIS) and the Social Security Administration (SSA), which together administer the program. 

The E-Verify portal was launched in 2011 and enhanced over the years to add more self-service features, language translations, and even remote accommodations following the significant shift to virtual work that started during the 2020 COVID-19 pandemic. 

E-Verify+

To date, employers were the ones required to manage the entire worker verification process. But coming in 2024, E-Verify+ shifts key portions of that burden to the worker. But this also provides three key benefits for workers who can now:

• Upload and open their own verification cases
• Receive immediate notifications directly about their case status
• Port their verification status to subsequent employers quickly and easily

Employers benefit as well. They will no longer have to be in the middle, managing worker cases and providing ongoing notifications about case status, known as Further Action Notices. Organizations are also freed from having to safely manage and store the sensitive personal information documents of the people they hire. 

Who needs to use E-Verify

While the original law made worker verification mandatory for all employers, over the years, states and local jurisdictions have instituted diverging standards. State requirements fall into four general categories:

• E-Verify is mandatory for all employers
• E-Verify is mandatory, but only for public employers
• E-Verify is voluntary for all employers
• E-Verify requirements follow local jurisdiction standards

How does the E-Verify verification process work?

Before an employer can begin worker verification, it must first enroll in E-Verify by opening a Point of Contact account. This is a one-time task for each organization. Thereafter, employers create a unique worker case in the online E-Verify portal for each new hire by completing the Form I-9 eligibility verification. This is required within three days of the employee starting paid work. 

Acceptable forms of identification

To complete a Form I-9, workers must provide acceptable forms of identification. Similar to the requirements for obtaining a driver’s license, workers must provide a document or combination of documents (all unexpired) that demonstrate a worker’s identity and employment authorization.

To satisfy the requirements, workers must present one document from List A which establishes both their identity and employment authorization, or one document from each of List B and C which together establish identity and employment authorization. 

• List A documents include US passport or passport card, Form I-551 permanent resident or “green card,” foreign passport with readable visa stamp; Form I-766, Employment Authorization document that contains a photograph; Form 1-94, with the unexpired right to work for a specific employer; Form I-94 with a passport from the Federated States of Micronesia or the REpublic of the Marshall Islands. 
• List B documents include items like a US-issued driver’s license identification, school ID, US military card or draft record, or for those under 18, a school report card, hospital record, or day care record. 
• List C documents include a Social Security card, birth certificate, Form I-197, US Citizen Identification Card and more.

See the full list of acceptable documents and acceptable receipts for lost documents at the US Citizen and Immigrant Service website. 

Using the online portal

Once the employer creates a case by submitting the I-9 data, the system checks the information against available government records. If the worker used a form of identification with a picture, the system will then prompt employers to do photo matching. This is when the employer compares photos from presented documents to the government records on file to help ensure the documents are indeed theirs. 

Expected response times and E-Verify case results

When an employer submits a new case, the system usually responds within a few seconds. It displays the worker status depending on the current records available on file at the US Department of Homeland Security (DHS) and SSA. Employers can receive one of six case results outcomes to their new worker cases. The answer received will then impact the speed of receiving final verification, depending on whether additional information or followup is required by the employee. 

Case results will be one of the following:

• Employment Authorized: All records will match and the employment will be authorized.
• E-Verity Needs More Time: The case requires further investigation by the DHS.
• Tentative Nonconfirmation (Mismatch): Records did not match and more action is required.
• Case in Continuance: This result means the employee has contacted either a DHS or SSA field office, and more time is needed to verify employment. 
• Close Case and Resubmit: Either DHS or SSA has requested that the original case be closed and a new case be opened for the employee. 
• Final Nonconfirmation:  E-Verify can not confirm eligibility and closes the case, or the timeline for case handling has expired. 

Because employers remain the primary contact for all case communication, they are required to notify workers in a timely fashion when E-Verify notifications arrive. Employees will then take the necessary steps to resolve issues and receive a final determination. 

What employer behaviors are forbidden under rule?

With employers at the center of eligibility confirmation, the process has built-in safeguards to protect workers. Organizations hiring workers are expected to operate ethically and good faith, and are therefore barred from any of the below behaviors forbidden by the Immigration Reform and Control Act of 1986:

• Knowingly hiring a person who is not authorized to work
• Hiring any individual without identifying identity and work authorization
• Continuing the employment of someone the employer knows is not authorized to work
• Knowingly forging, counterfeiting, altering or falsifying any document to satisfy immigration requirements
• Knowingly using, accepting, or receiving any false document to satisfy immigration requirements
• Discriminating in hiring or firing against a citizen or an intending citizen based on national origin or citizen status 
• Intentionally requiring an employee to present any specific document or combination of documents for Form I-9 purposes
• Intentionally requiring an employee to present more or different documents than are minimally required for employment verification purposes
• Refusing to honor documents that appear to be genuine

Workers have rights during the E-Verify verification process, and employers are expected to know and honor these.

How long must employers keep I-9 forms?

Employers must retain a completed I-9 form for every active employee on payroll who was hired after November 6, 1986. Organizations must also keep copies (digital or otherwise) of employee documents used to complete Form I-9 for as long as the employee works there and for a certain amount of time thereafter. The duration of document retention depends on the length of an employee’s tenure.

To calculate how long you must retain records, follow the following guidelines:

• For work tenure under two years, employers should keep the worker’s Form I-9 for three years after their first date of employment.
• For work tenure over two years, keep a worker’s Form I-9 for one year after their end date/last day of work.

Records can be stored digitally, on paper, or on microfilm or microfiche, and they can last at least 20 years. 

Reverifications/Rehires

If an organization decides to rehire an employee within three years of completing the original I-9, it can complete Supplement B for Reverification and Rehires. If the worker is still eligible to work, no further documentation is required. If their authorization has expired, companies should complete the appropriate fields, including worker name and the date of rehire. 

Note that Form I-9 gets updated regularly. If the original I-9 on file is an older version, employers are required to complete Form I-9 again using the latest version, adding each document title used for verification, with their expiration dates. 

Penalties for non-compliance

If a US Citizenship and Immigration Services investigation determines that an organization has engaged in unfair employment practices, the wronged worker is entitled to file a lawsuit. 

Settlements can force a number of steps including a cease and desist order, hiring, or rehiring the aggrieved worker, who may also be owed back pay. Organizations may also have to pay civil penalties and post notices to current employees about their rights. Courts may also award attorney fees, out-of-pocket expenses, and compensatory damages.

Personal liability

Many leaders fail to understand that they could be held personally liable in certain worker discrimination cases. This occurs when there is a repeated pattern or practice of employment, recruitment, or referral that violates the Immigration and Nationality Act. A pattern is established following “regular, repeated, and intentional activities, not including isolation, sporadic or accidental acts.” Wrongdoing can force organizations to incur fines and/or up to six months of imprisonment for the individuals involved. 

Employers can also be fined or imprisoned for up to five years if found to have engaged in fraud or false statements, or otherwise misused visas, immigration permits, or identity documents. These are high stakes consequences meant to deter wrongful behavior and keep organizations compliant. 

The takeaway

Established in 1986, the Immigration Reform and Control Act began formalizing the practice of verifying the eligibility of newly hired workers to work in the United States. The E-Verify program is jointly administered by the US Citizenship and Immigration Service (USCIS) and the Social Security Administration (SSA). 

Organizations using E-Verify must open a case within three days of an employee’s first day of paid work by completing a Form I-9. Employees have a range of documents they can use to prove their identity and employment eligibility, presenting them to employers who have Point of Contact accounts in E-Verify. Results can arrive within seconds, but the process may take longer if Further Action Notices must be addressed. These require employees to follow up with additional documentation and potentially interviews with USCIS or the SSA.

Employers are expected to operate ethically and in good faith throughout the employee verification process. If not, they open themselves up to civil or criminal penalties and/or fines. But organizations properly administering the E-Verify process should find quick and easy answers when verifying the employment eligibility of new workers.