The E-Verify Electronic Employment Verification System

E-Verify is a free, Internet-based system that employers use to confirm the legal status of newly hired employees, as mandated by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. The system, a partnership of the U.S. Department of Homeland Security (DHS) and the Social Security Administration (SSA), verifies an employee's authorization to work, not immigration status. The system compares Social Security numbers and DHS's immigration databases with Form I-9 information. The average response time is three to five seconds.

To participate in E-Verify, an employer must register online at the DHS E-Verify page and accept the electronic Memorandum of Understanding (MOU) that details the responsibilities of the SSA, DHS and the employer. Once registered, employers submit information provided on an employee's Form I-9. The system will return one of three results:

1. Employment authorized. The employee is authorized to work. The employer should then record the system-generated verification number on the Form I-9.
2. SSA tentative nonconfirmation. The SSA database shows the employee's name and Social Security number do not match. The employer must promptly provide the employee with information about how to challenge the information mismatch. The employee has eight business days to resolve the issue with the SSA or DHS. The employee may continue to work while the case is being reviewed. After 10 federal government work days, the employer queries E-Verify again in order to get a confirmation or a final nonconfirmation, unless the SSA instructs otherwise. If the employee does not contest the finding, the determination is considered final and the employer may terminate the employee and resolve the case.
3. DHS verification in process. The DHS will respond in most cases within 24 hours with either an Employment Authorized statement or DHS tentative nonconfirmation. If the employer receives a tentative nonconfirmation from DHS, the employer must print out the notice and provide it to the employee so the employee can decide whether or not to contest the finding. If the employer erred in the data input, the employer should attempt to refile with E-Verify.

If the employer finds a photographic nonmatch for an employee, the employer must print the photographic nonconfirmation notice and present it to the employee so the employee can decide whether to contest the finding. In the case of a photographic nonconfirmation, the employer will provide the employee with a referral letter to DHS. DHS will provide the results within 10 days of the referral unless it determines it needs more time.

In photographic nonconfirmation cases, the employer sends a copy of the employee's Form I-551 permanent residency card or I-766 employment authorization document to DHS by scanning and uploading the document or mailing a photocopy via express mail. When an employer cannot determine if the photograph matches, the employer should forward the document to DHS for a decision.

Employers using E-Verify are required to post in an area visible to prospective employees an antidiscrimination notice and a notice that the company is an E-Verify participant. Effective January 2009, certain employers doing business with the federal government are required to use E-Verify for new and certain existing employees as a condition of their contracts.

An employer can complete E-Verify after an offer of employment is accepted and a Form I-9 is completed. This can be before the start date (as long as an employer is not prescreening applicants), but no later than three business days after the start date. This does not apply in cases where there is no Social Security number, in which case the employer should wait until the number is available. Employers must be consistent in the timing of a query to avoid discrimination.

Employers using the E-Verify system must verify all newly hired employees, including citizens and noncitizens. Employers may not pick and choose which employees are submitted into the system. E-Verify may not be used to go back and check employees hired before the company signed the MOU or reverify employees who have temporary work cards.

Employers who use E-Verify are presumed not to have violated employer sanctions rules with respect to hiring if they obtain confirmation of the identity and employment eligibility. Note, however, that DHS does not consider that using E-Verify provides a "safe harbor."