August 2018

by Julie A. Pace and Heidi Nunn-Gilman, The Cavanagh Law Firm

Since November 1986, the Immigration Reform and Control Act has required that employers verify the identity and employment eligibility for all newly hired employees using the Form I-9. In construction, most companies completed the I-9 in paper form. Even with a fully complete I-9, many undocumented workers were able to obtain employment using false identities. To address this issue, the federal government launched E-Verify.

What Is E-Verify?

E-Verify is an internet-based program administered by the Social Security Administration and the Department of Homeland Security. Employers who are enrolled in E-Verify enter information from the employee’s Form I-9 into the E-Verify system. This information is then compared to information in the SSA and DHS records to verify identity and authorization to work in the United States.

If the information entered from the employee’s Form I-9 does not match the SSA and DHS records, then E-Verify provides a tentative non-confirmation. The employee can challenge the TNC and work with the SSA or DHS to correct the error in their records. If the employee does not challenge the TNC or is unable to resolve the discrepancy that caused the TNC, then E-Verify generates a final non-confirmation, informing the employer that the individual is not authorized to work in the United States.

E-Verify provides employers with a method that they can use, in addition to the Form I-9, to verify an individual’s identity and authorization to work in the United States and provide assurances of compliance. Unfortunately, however, no system is perfect and even the Government’s own reports show that a limited number of individuals can pass E-Verify using false documents. This occurs because people sometimes use documents to work that belong to a real person so that they can pass E-Verify. This situation has resulted in an increase in identity theft for purposes of gaining employment.

Who Is Required to Use E-Verify?

E-Verify is currently voluntary at the federal level, except for companies with federal contracts, who are required to use E-Verify. Additionally, there has been various legislation introduced in Congress that would make E-Verify mandatory nationwide. President Trump also included mandatory E-Verify in his 2019 budget proposal. Therefore, nationwide mandatory E-Verify is closer than ever.

Some states require all employers to use E-Verify, while others require public entities or companies who contract with the state public entities to use E-Verify. Companies should review the state laws in all states in which they operate to ensure that they are in compliance with any state E-Verify requirements.

Employers in states that do not require E-Verify have the option of whether to use E-Verify.

How Does an Employer Use E-Verify?

Employers Must Enroll in E-Verify Online & Agree to an MOU. A company desiring to use E-Verify has to enroll and complete a Memorandum of Understanding online at https://www.e-verify.gov/e-verify-enrollment. In the MOU, employers agree to follow the program requirements, including:

1. The employer may not submit an inquiry to E-Verify until after an employee is hired and an I-9 has been completed and only for new employees, not for employees hired before the employer enrolled.
2. The employer must not discriminate against employees based on national origin or citizenship status.
3. The employer must post notices provided by DHS regarding its participation in E-Verify and must post anti-discrimination notices issued by the DOJ.
4. The employer may not use E-Verify selectively. If used, it must be used for all new hires at the location using E-Verify.
5. The employer may not use E-Verify to reverify the employment eligibility of an employee whose original work authorization documents have expired.
6. The employer must provide the employee copies of the written Further Action Notice, if applicable, and the opportunity to resolve the TNC.
7. The employer must not take adverse action against an employee while the employee is challenging a TNC, unless the employer obtains knowledge (as defined in 8 C.F.R. § 274a.1(1)) that the employee is not authorized to work in the United States.
8. The employer must take steps to safeguard the information used for E-Verify and ensure it is not used for any purpose other than employment eligibility verification.

Companies may register to use E-Verify at individual work sites and not use it at the entire company. The central office can perform the employment verification for all sites or each site can perform its own E-Verify process.

Additionally, an employer can outsource employment authorization verification to a third party service provider called an E-Verify Employer Agent. However, if a company outsources its employment verification under E-Verify, it will still be required to sign a Memorandum of Understanding and be assigned a unique number that the service provider will use only for that company.

Employers Enter the Information from the Form I-9 and E-Verify Compares it to the SSA and DHS Records

Employers start the employment verification process in essentially the same way that they would if not using E-Verify; by completing a Form I-9. The I-9 cannot be completed until after a company hires an individual.

E-Verify places one limitation on the I-9. The E-Verify employer may accept a List B document to establish identity only if the List B document contains a picture. However, the employee still gets to choose whether to produce either (1) one List A document or (2) one List B and one List C document, and which document from the list to show, as long as the List B document has a photograph. If the employee presents a Permanent Resident Alien Card, a Form I-766 Employment Authorization Document, a U.S. passport or a U.S. passport card, the MOU requires the employer to copy and maintain a copy of the document to verify the photo against the DHS database.

The SSA first verifies if the name, date of birth, social security number, and citizenship status reported match the SSA’s records. Inquiries regarding non-citizens are routed to the DHS/USCIS to verify the work authorization of the employee. If the information entered matches the SSA and USCIS databases, then no further action is required. The employer is provided an “employment-authorized” confirmation and must retain a record of the confirmation with the Form I-9.

If the SSA or USCIS is unable to verify the information, the employer will receive either an SSA TNC or DHS Tentative TNC. The employer must provide the employee with a written notice entitled “Further Action Notice.” The FAN notifies employees that a tentative non-confirmation has occurred and gives them the option to contest it with DHS or SSA and explains the steps the employee must take to resolve the tentative non-confirmation. The employer must print the notice to review with the employee. Both the employee and the employer must sign the FAN. One signed copy of the notice should be given to the employee and one kept with the individual’s Form I-9.

If the employee is challenging the non-confirmation, the employer is required to select “refer case” and print a second notice called a “Referral Date Confirmation” that contains the date on which the referral is made and the date by which the employee must address the tentative non-confirmation. The employer should keep and provide a copy of the Referral Date Confirmation to the employee and keep one for its files, attached to the employee’s Form I-9. If the employee does not challenge the TNC, then the employer can close terminate the individual’s employment and close the case.

Employees Have Eight Working Days and Government Has 10 Working Days to Resolve Discrepancy

The employee has eight working days after receiving the referral letter from the employer to contact the SSA or DHS to try to resolve the discrepancy. The employee is to keep working during this time. The employer must treat this employee the same as it treats employees who received an automatic work authorization and cannot delay the employee’s start date or training opportunities based on a TNC.

The SSA or DHS has 10 working days to resolve the case after the employer has referred the case. If more time is needed, the employer will receive a “case continuance” notice. The entire procedure is designed to provide a final confirmation or final non-confirmation within 10 business days after the employer enters the information in E-Verify, but this does not always occur. After DHS or SSA finishes it review, it updates the results in E-Verify to be either “employment authorized” or “final nonconfirmation.”

If an employee does not challenge a TNC, the non-confirmation becomes final

After a non-confirmation becomes final, the employer must either terminate the individual’s employment or notify DHS if it continues to employ an employee after receiving a final non-confirmation. An employer is subject to fines of up to $1,500 for each failure to notify the DHS that it continued to employ an individual after a final non-confirmation. If the employer continues to employ an individual after a final non-confirmation, the employer is subject to a rebuttable presumption that it has knowingly employed an unauthorized alien.

What About Selectively Using E-Verify or Taking Adverse Action During a TNC?

Violations of the MOU may lead to legal liability under federal or state law, including Title VII of the Civil Rights Act of 1964 and the non-discrimination provision of the Immigration and Nationality Act. The Department of Justice Civil Rights Division Immigrant and Employee Rights Section enforces the non-discrimination provisions. Employees who believe that a company has used E-Verify in a discriminatory manner may file a complaint with the IER.

An employer could be subject to a discrimination charge if it uses E-Verify as a pre-screening tool to verify work authorization of applicants. It could also be subject to a discrimination charge for failing to provide the employee the notice of TNC and right to challenge the TNC, selectively using E-Verify, using E-Verify to verify work authorization of existing employees or taking adverse action based on a TNC. The IER has published an “E-Verify Employer Do’s and Don’t’s,” available at https://www.justice.gov/sites/default/files/crt/legacy/2014/03/14/e-verifydosanddonts3.pdf.

An employer is prohibited from taking adverse employment action against an employee who is contesting a TNC. The employee should continue to work until receiving a final result in E-Verify. The employer cannot treat the employee who is contesting a TNC any differently than the employee who gets an initial employment authorized result. If the employee is not challenging the non-confirmation, the employer should terminate the individual’s employment or report to DHS it is not terminating the individual’s employment after the non-confirmation.

An employee cannot face any adverse employment consequences based on a TNC. An employer may not delay the employee’s start date, delay training, or otherwise treat an employee with a TNC differently than an employee that received an instant confirmation. An employer cannot speed up an agreed-upon start date based on a confirmation from E-Verify, because this would be disparate treatment of employees based on results from E-Verify. If the employer generally offers training to employees in the first ten days of employment, it must provide the same training to the employee with the TNC. An employer may not discriminate against an employee with a TNC.

Julie A. Pace is a Senior Member with The Cavanagh Law Firm, Phoenix, Ariz. Pace concentrates her practice in the fields of employment law, immigration compliance, OSHA, health care, and construction. She defends claims of sexual harassment, employment discrimination, retaliation, whistleblower, and wrongful discharge, and against charges by the EEOC and ACRD. She handles matters involving OSHA, ICE, OFCCP, DOL, NLRB, Davis-Bacon, FAR, ADA, FMLA, and wage and hour laws, audits and issues. Pace also handles issues involving the Affordable Care Act and addresses the changes and options it presents to companies.  Her Davis-Bacon and prevailing wage practice includes counseling and training on state and federal prevailing wages and benefits requirements, coverage and applicability of prevailing wage laws, coverage exemptions, worker classification and pay issues, addressing wage determinations, wage surveys, and representation of employers before the Department of Labor Wage and Hour Division and similar state agencies. She can be reached at (602) 322-4046 or jpace@cavanaghlaw.com. Heidi Nunn-Gilman is a Senior Member in the Employment, Labor, OSHA, and Immigration Department with The Cavanagh Law Firm, Phoenix, Ariz. Nunn-Gilman’s practice focuses on human resource counseling and employment litigation.  She has extensive experience handling employment immigration compliance strategies, including I-9s, E-verify, ICE and worksite investigations and enforcement under the Legal Arizona Workers Act and similar state and local laws. She regularly advises clients on matters relating to labor and employment law, federal contractor compliance (including Affirmative Action, Davis-Bacon, and federal contractor E-Verify requirements), ADA, Title VII, FLSA, NLRB, FMLA, leaves, drug and alcohol, union matters, wrongful discharge, wage and hour laws for both public and private employers, employee handbooks, confidentiality and non-compete agreements, and executive agreements. She can be reached at (602) 322-4080 or hnunngilman@cavanaghlaw.com.