Earlier this year, Florida’s updated E-Verify law required private employers with 25 or more employees to use the service. As similar requirements pick up steam nationwide, every business should identify how E-Verify laws impact recruitment and onboarding.
E-Verify compliance isn’t as simple as flipping a switch. Even if a company already relies on the tool to confirm the eligibility of new hires, that doesn’t necessarily mean its HR team is in complete compliance. Different states’ E-Verify laws can shift based on what fines and penalties a company could experience for noncompliance.
The evolving regulatory landscape can make it feel like HR’s back is against the wall. The truth about compliance, however, is that it doesn’t have to be reactive. Here’s what employers need to know to build — or tighten up — their approach to E-Verify.
When did E-Verify begin?
What would eventually become E-Verify was introduced in 1996 as part of the Illegal Immigration Reform and Immigrant Responsibility Act. The U.S. Department of Homeland Security (DHS) experimented with three pilot programs that would eventually turn into E-Verify as we know it today.
What is E-Verify?
E-Verify is an online system that confirms an individual’s work authorization. It works by checking information from a completed I-9 against records from DHS and the Social Security Administration (SSA).
In most cases, it takes E-Verify only three to five seconds to display an initial case result. Reviews that require additional time may receive a “tentative nonconfirmation” or “E-Verify needs more time” result. Even a “final nonconfirmation” outcome doesn’t guarantee an employee is ineligible, but it does mean DHS will require more evidence.
According to DHS, E-Verify:
- has over 1 million enrolled businesses
- includes over 2.4 million job sites
- adds 1,500 companies each week
E-Verify document requirements
Since E-Verify relies on I-9 cross-reference information, the tool accepts the same documents required for an I-9. Acceptable documents include, but are not limited to:
| List A | List B | List C |
| U.S. passport | Driver’s license | Certification of birth abroad |
| Permanent resident card (Form I-551) | Military ID | Native American tribal document |
| Foreign passport with a temporary I-551 stamp | Voter registration card | An employment authorization issued by DHS |
If possible, an employee can provide one document from List A. List A documents prove an individual’s identity and work authorization.
Alternatively, employees may provide a document from List B (documents that show identity) and List C (documents that show employment authorization).
How does E-Verify work?
Unlike some bureaucratic processes, E-Verify is relatively quick and simple. But employers need to complete two important phases to start using the tool.
1. Enrolling in E-Verify
Most new enrollments go through E-Verify’s official site. (Keep in mind that any business must agree to E-Verify’s terms and conditions before enrolling.) The enrollment portal will then walk users through:
- setting up a point of contact
- determining account access
- selecting an employer category
- entering business info
- providing hiring site data
- adding E-Verify users and Memorandum of Understanding (MOU) signatory
- reviewing the entered info and MOU
- submitting enrollment
- retaining the electronically signed MOU
On a related note, E-Verify can’t process anything without the most important piece: I-9s. Federal regulations require employers to complete I-9s within a new hire’s first three days. Luckily, when employers use the new Form I-9 with E-Verify, they can inspect the documents remotely.
2. Starting E-Verify
After enrolling, businesses can begin checking their employees through E-Verify. However, while the process is simple, it may not be the most straightforward at first. Here are five additional steps to actually use E-Verify:
- Gather all completed I-9s.
- Create a case in E-Verify.
- E-Verify will attempt to photo match the employee with images in their database. (If an employee provided an item from List A or a Form I-766.)
- E-Verify will provide one of the following results:
a. Employment authorized: The employee’s info successfully matched with DHS and/or SSA records.
b. E-Verify needs more time: The case was referred to DHS for further review.
c. Tentative nonconfirmation (mismatch): Additional action is required, but the employee’s eligibility wasn’t completely refuted.
d. Case in continuance: The employee has contacted DHS or SSA, but the final case result is still pending.
e. Close case and resubmit: DHS or SSA requires a new case entry for the applicable employee. (This is not a notice of ineligibility.)
f. Final nonconfirmation: Either E-Verify can’t confirm the employee’s eligibility even after the individual contacted DHS or SSA, the time to resolve the case expired, or DHS closed the case without confirming eligibility for another reason. - Close the case:
a. E-Verify will automatically close the case if the result is “employment authorized.”
b. Employers must manually close the case for “close case and resubmit” or “final nonconfirmation” results.
What do businesses do if they receive a “Tentative Nonconfirmation (Mismatch)” result?
If the case results in “Tentative Nonconfirmation (Mismatch),” the employer must notify the affected employee. The employee has the option to resolve the mismatch — though refusing will likely force their employer to terminate them.
A mismatch in information for the SSA may be from an:
- outdated name, citizenship or immigration status
- inaccurate Social Security number or date of birth
- employer’s error when submitting the employee’s info
Similarly, a DHS mismatch can be caused by:
- incorrect names, alien numbers, I-9 or foreign passport numbers
- unverifiable ID or passport info
- updated citizenship or immigration statuses
- record or data entry errors
Fortunately, employers have 10 business days to rectify their submission after they receive notice of the mismatch. They must take these five steps:
- Immediately notify the affected employee of the mismatch.
- Give the employee a copy of the Further Action Notice.
- Review the notice with the employee privately to confirm the info they provided.
a. If the data was wrong, close the case and select the appropriate statement for incorrect info, then open a new case using the proper data.
b. If the info was correct, proceed to the next step. - The employee decides how they wish to proceed and informs their employer within 10 business days of the mismatch.
- The employer must close the case if their employee does not confirm within the allotted time.
Is E-Verify mandatory?
E-Verify is voluntary for most employers. Federal contractors, however, must use the service if they have contracts containing the Federal Acquisition Regulation E-Verify clause.
Always consult with a licensed professional if you’re unsure if your business must use E-Verify.
Which states require E-Verify?
Currently, 20 states require certain employers to use E-Verify statewide. However, these requirements can vary depending on several factors. Consult this table to determine if E-Verify laws impact the states where you operate:
| State | Is E-Verify mandatory or voluntary? | Additional info |
| Alabama | Mandatory |
|
| Alaska | Voluntary | |
| Arizona | Mandatory |
|
| Arkansas | Voluntary | |
| California | Voluntary | |
| Colorado | Mandatory for state contractors only. |
|
| Connecticut | Voluntary | |
| Delaware | Voluntary | |
| Florida | Mandatory for public employers, contractors, subcontractors and private employers with 25 or more employees. | |
| Georgia | Mandatory for all public and private businesses with 10 or more employees. | |
| Hawaii | Voluntary | |
| Idaho | Mandatory for government agencies and contractors. | |
| Illinois | Voluntary | |
| Indiana | Mandatory for state and local government agencies and government contractors. | |
| Iowa | Voluntary | |
| Kansas | Voluntary | |
| Kentucky | Voluntary | |
| Louisiana | Mandatory for private contractors and subcontractors doing business with public entities. |
|
| Maine | Voluntary | |
| Maryland | Voluntary | |
| Massachusetts | Voluntary | |
| Michigan | Mandatory for contractors/subcontractors of transportation department. | |
| Minnesota | Mandatory for public contractors and subcontractors on state contracts of more than $50,000. |
|
| Mississippi | Mandatory for public and private employers. | |
| Missouri | Mandatory for all public employers or contractors. |
|
| Montana | Voluntary | |
| Nebraska | Mandatory for state and local contractors, subcontractors and employers given state tax incentives. | |
| Nevada | Voluntary | |
| New Hampshire | Voluntary | |
| New Jersey | Voluntary | |
| New Mexico | Voluntary | |
| New York | Voluntary, except for contractors working in Suffern. | |
| North Carolina | Mandatory for contractors, subcontractors and private employers with 25 or more employees. | |
| North Dakota | Voluntary | |
| Ohio | Voluntary | |
| Oklahoma | Mandatory E-Verify for state and local employers on all employers, contractors and subcontractors. |
|
| Oregon | Voluntary, except for employers in Columbia County. | |
| Pennsylvania | Mandatory for all state and local government contractors and public works contractors. |
|
| Rhode Island | Voluntary | |
| South Carolina | Mandatory | |
| South Dakota | Voluntary | |
| Tennessee | Mandatory for private employers with 50 or more employees. |
|
| Texas | Mandatory for all state employers and contractors. | |
| Utah | Mandatory for private employers with 15 or more employees and public works contractors. | |
| Vermont | Voluntary | |
| Virginia | Mandatory for contractors with 50 or more employees that enter a contract with a state agency worth over $50,000. | |
| Washington | Voluntary | |
| West Virginia | Voluntary | |
| Wisconsin | Voluntary | |
| Wyoming | Voluntary |
Does E-Verify show employment history or immigration status?
E-Verify only provides a verification result. It doesn’t show information about employees’ past:
- employment
- citizenship
- immigration status
How does E-Verify help employers?
E-Verify makes it easier for businesses to determine if their employees can legally work for them. The tool is easily implemented in onboarding, since an employee must provide a completed I-9.
Plus, if an organization has access to the internet, it can use E-Verify. The service also produces most results in seconds, and its thorough photo-matching capability helps prevent identity and document fraud.
And a dedicated phone and email team supports E-Verify for streamlined and personalized assistance.
Discrimination and E-Verify
Companies that rely on E-Verify must apply it to all employees hired through their designated E-Verify hiring sites. DHS considers cherry-picking workers to run through E-Verify discriminatory and in violation of federal law.
Additionally, employers can’t restrict employees to provide only certain documents for their I-9. They must accept any documents from List A, B or C. If an individual provides valid documentation from List A, their employer can’t force them to provide extra material.
How does a single HR software help businesses comply with E-Verify?
E-Verify helps employers quickly verify the eligibility of their employees, but they still have to gather and submit the necessary I-9s. This process can be time-consuming and error-prone when it’s done manually or through a system that doesn’t seamlessly communicate with the rest of a company’s HR software.
Paycom’s E-Verify® tool effortlessly works employment verification into the onboarding process, checking the information a new hire already provided in the same, seamless software. This helps businesses proactively comply and reduce exposure that leads to:
- costly fines
- unexpected audits
- prison sentences
- forfeiture of assets
- revoked operating licenses
And because the tech processes E-Verify cases in Paycom’s single software, HR doesn’t have to reenter data that employees already gave. Plus, the tool relies on electronic signature verification so essential employee documentation can be processed quickly.
The result? HR spends less time stressing and managing E-Verify cases, while your business complies with confidence.
Learn how Paycom’s single software simplifies compliance and every other step of the HR life cycle.
DISCLAIMER: The information provided herein does not constitute the provision of legal advice, tax advice, accounting services or professional consulting of any kind. The information provided herein should not be used as a substitute for consultation with professional legal, tax, accounting or other professional advisers. Before making any decision or taking any action, you should consult a professional adviser who has been provided with all pertinent facts relevant to your particular situation and for your particular state(s) of operation.