Avoid E-Verify pitfalls

E-Verify is a federal program that lets employers electronically check the identity and work eligibility of employees. To participate, an employer must register online and agree to use the system for all new employees.

E-Verify supplements the I-9 procedure but it does not replace it, and employers are required to use E-Verify in a manner that is nondiscriminatory and protective of employee privacy.

Using E-Verify has benefits and in some cases is required, but using it incorrectly can lead to significant problems, ranging from I-9 audits to privacy and discrimination claims. Key to successfully using E-Verify is avoiding these mistakes:
  1. Voluntarily registering for E-Verify when it is not in your best interest. Some companies are required to use E-Verify because they have qualifying federal contracts or operate in a jurisdiction where it is required. But for most companies the program is voluntary. Although using E-Verify is free, there are costs associated with developing a policy, training staff and ensuring compliance. E-Verify can also create legal liability in the form of government audits and privacy and discrimination violations. Before signing up, know the costs and benefits.
  2. Registering the whole company for E-Verify at once when a controlled rollout might work better. Employers are allowed to introduce E-Verify on a per-worksite basis. This can be enormously beneficial for large companies that operate in multiple locations. Businesses that implement E-Verify slowly over the course of several weeks or months are often in a better position to control the impact of its introduction into the workplace.
  3. Signing up for E-Verify and then not using it. Once registered, a company is legally required to use it for every new hire. Federal contractors must also use it for existing employees working on the contract. Failing to use it could result in debarment from the program and/or a federal I-9 audit with potential civil or criminal fines.
  4. Signing up for E-Verify without a strategy and company policy in place. Having a policy in place before you sign up is essential. You will need to decide which sites are participating and when. HR members with access will need to receive training and certification. Legal notices regarding the use of E-Verify and employee privacy and nondiscrimination rights must be posted. If you operate in Illinois there are additional state requirements.
  5. Not initiating E-Verify queries on time. The timeline for an individual’s E-Verify query is similar to the I-9 timeline. A query must be initiated after the I-9 process has been completed and before the end of the third day of employment.
  6. Accepting a “List B” identity document without a photo. When an employee presents a combination of identity (List B) and work eligibility (List C) documents, the employer may only accept the identity document if it contains a photograph. The photograph will correspond to an electronic photo tool in the E-Verify system that helps employers authenticate the identity of new-hires.
  7. Taking adverse action against an employee who contests a Tentative Non-Confirmation (TNC). When the E-Verify system cannot confirm an employee’s I-9 data, it will issue a TNC. A TNC does not necessarily mean that an employee is unauthorized to work in the United States. The employer must notify the employee as soon as reasonably possible and provide them with an opportunity to contest the TNC without threat of termination or other adverse action, such as delaying training or project assignments, or pushing back the start date itself. A TNC employee should be treated like any other employee until the TNC is resolved.
  8. Misusing E-Verify. The E-Verify system provides access to private information about millions of U.S. workers. An employer must take steps to make sure the E-Verify system is used for the right purpose, at the right time, and by the right persons. Employers must safeguard E-Verify account login information and never permit untrained or uncertified personnel to conduct E-Verify queries.
  9. Using E-Verify in a selective, sporadic or discriminatory manner. E-Verify should be used for every new hire, including U.S. citizens. As with the I-9 process, an employer must not ask for more or different documents than what is legally required on the Form I-9 (with the exception of the List B photo requirement discussed above). Nor should they reject I-9 documents that appear to be genuine and reasonably related to the employee.
  10. Not checking back frequently on outstanding TNCs. If an employee elects to contest a TNC, it can take days or longer for the discrepancy in the record to be resolved. During this time, the employer must check the E-Verify system daily for updates. If and when the TNC is converted into a Final Non-Confirmation, the employer is obligated to complete the E-Verify query and terminate the employment.

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