2021 E-Verify Mandates

All employers need to be aware of the revised 2021 E-Verify mandates to ensure compliance, especially if operating across state lines. Requirements are changing frequently and penalties for non-compliance can include monetary fines per violation and denial, suspension, or revocation of an employer’s business license. While not every U.S. employer is required to use the E-Verify program, it is critical that employers educate themselves on how the program works and if it is mandatory in their state(s) of operation.

How E-Verify Works

E-Verify is a government sponsored web-based program which is designed to compare information gathered from an employee when completing the Form I-9 against other federal agency databases, such as the U.S. Department of Homeland Security (DHS) and the Social Security Administration (SSA). This quick database comparison can produce results in as little as three to five seconds. At the time of its rollout, E-Verify was largely a voluntary program, however, it has grown in popularity as it is widely considered an added layer of protection for employers in verifying an employee’s identity and work eligibility in the U.S. However, employers should note that the E-Verify program will not perform a criminal background check on their employees. Separate operational processes should be in place to handle this review.

Who Do the New 2021 E-Verify Mandates Apply To?

As of 2021, the list of states and their mandates for the E-Verify program continues to grow. The new changes can be broken down as follows:

States requiring at least some employers to use the E-Verify program:

  • Alabama
  • Arizona
  • Georgia
  • Mississippi
  • North Carolina
  • South Carolina
  • Tennessee
  • Utah

State contractors only are mandated to use E-Verify in:

  • Colorado
  • Louisiana
  • Minnesota

States where E-Verify requirements exist for local municipalities:

  • Michigan
  • New York
  • Oregon
  • Washington

Public employers only are required to use E-Verify in:

  • Idaho
  • Virginia

Contractors and/or public employers working with the state must use E-Verify in:

  • Florida
  • Indiana
  • Missouri
  • Nebraska
  • Oklahoma
  • Pennsylvania
  • Texas

As is illustrated above, E-Verify requirements can vary widely from one state to another and often are based on the number of people employed within a business. When operating across state lines, it is a good practice to implement the E-Verify process across all business locations, even if it is not required by the law to ensure consistency for all work sites and to avoid the appearance of discriminatory employment practices.

E-Verify Is Not Yet Mandatory for All Employers

For many, E-Verify use is not mandatory, unless a company is:

  • Ordered to use E-Verify per an official legal ruling
  • Operating in a state that requires employers to participate
  • Participating in federal contracts or subcontracts containing the Federal Acquisition Regulation (FAR) E-Verify clause

Although E-Verify may not be required for all businesses, companies located  in the District of Columbia, Puerto Rico, Guam, the U.S. Virgin Islands, and the Commonwealth of Northern Marina Islands are eligible to use the program.

Enrolling in E-Verify

There are a few different options for enrolling in E-Verify which include Employer Access, E-Verify Employer Agent Access, and Corporate Administrator Access.

The E-Verify enrollment and onboarding process may include signing a program agreement and participating in mandatory web training to ensure maximum understanding and effective use of the program. To ensure every step is followed to the letter, new companies enrolling in the program are encouraged to visit the E-Verify website for additional information and an instructional webinar.

Digital I-9 Compliance Software is a Valuable Resource for E-Verify

When it comes to E-Verify, many businesses are increasingly turning to the use of digital I-9 compliance software for help in streamlining the process. This can be particularly critical as much of the input used for the Form I-9 is used to create an E-Verify record for each employee at the time of hire, reducing the need for retyping information into E-Verify and therefore lowering the risk of making errors. In addition, reliable I-9 compliance software can send E-Verify alerts of required employer actions and track the status on any cases that may be left open or unresolved in the system.

Review the new 2021 E-Verify mandates in detail and consider implementing digital I-9 compliance software to ensure you are effectively managing your compliance requirements and minimizing your company’s liabilities.

E-Verify Tentative Nonconfirmation (TNC) Action Enforcement

In October of 2020, the United States Citizenship and Immigration Services (USCIS) announced it would be enforcing the existing rule for employers to take action within ten federal government working days of receiving a Tentative Nonconfirmation (TNC) for an employee. Prior to this announcement, USCIS guidance urged employers to generally take action as soon as possible upon receipt of a TNC and was not specific. If you are currently enrolled in E-Verify, you have likely received one of these E-Verify e-mail notices by now, which can be quite startling. This communication is a gentle reminder of the new focus on enforcement and the employers wake up call to take intentional action.

The October announcement has many employers wondering why the sudden increase in enforcement. Essentially, USCIS was seeing a large number of open TNC cases, which likely indicated that:

  1. E-Verify users are not referring cases to government agencies when an employee contests to resolve a TNC
  2. E-Verify users are not closing a case if an employee chooses not to contest the TNC

The bottom line here is that when an E-Verify user fails to take their responsibilities for E-Verify actions they are at risk of receiving a violation which can negatively impact their compliance. In some cases it could even be possible that the employer’s E-Verify account could be terminated, rendering the business unable to operate.

Employers using E-Verify have the duty of care to ensure those in the organization who are responsible for this oversight truly understand the requirements of the program, grounds for TNCs, and how to resolve these E-Verify notices within the ten-day deadline in order to stay compliant. Completing the TNC process strengthens E-Verify program and helps ensure employers close E-Verify cases according to program requirements. Unfamiliar with E-Verify? See more about the program below.

What Is an E-Verify Tentative Nonconfirmation (TNC)?

A TNC typically means that the information input into the E-Verify system by an employer does not match government agency records from the Department of Homeland Security (DHS) or the Social Security Administration (SSA).

An employer could receive a TNC notification from DHS or SSA for one or more of the following reasons:

  • Information not entered correctly by the employee or employer, including transposed or mismatched numbers, incorrect dates or misspelling of employee’s first or last name
  • Unreported name changes by the employee
  • Immigration or citizenship status change
  • Unverifiable passport or identity information such as a driver’s license or state ID card
  • Photo match issue
  • DHS record such as an Alien number, I-94 number and/or foreign passport number is incorrect

Actions Required for a TNC

It is worth noting that the ten-day window is not dedicated to resolving the TNC issue, rather it simply mandates that an employer either declare in the E-Verify system that an employee is contesting the TNC or otherwise close the individual’s case after then ten-day period has passed if they have received no decision from the employee.

According to E-Verify’s website, the proper steps to take upon receiving notification of a TNC are:

  • Further Action Notice. The employer must alert the employee in question of the TNC via a printed copy of the Further Action Notice. This notice gives the employer information about how to properly notify an employee about a TNC and additional information about the TNC itself.
  • Employee Decision. The employee must make a decision about contesting the TNC within the ten federal government working day period as properly indicated on the Further Action Notice. If an employer does not receive a decision by the end of the tenth day or if the employee confirms they will NOT contest the TNC, the employer may close that individual’s E-Verify case and end the employee’s employment.
  • Employee Contest. If an employee wishes to contest a TNC, the employer should update E-Verify with a referral date which sets the ten-day window and provides a specific date by which the employee must visit either a Department of Homeland Security or a Social Security Administration office. The type of TNC declared will dictate which type of office the employee should visit. It is critical to note that during the TNC period where the employee has confirmed that they will take the requisite action on the TNC, the employer may NOT take any adverse action (terminate, suspend, withhold or lower pay, etc).
  • Visit DHS or SSA Office. The employee promptly acts to resolve the mismatch issue. An employee should visit the DHS or SSA as soon as possible. If the employee does not act to resolve the TNC issue within ten working days of that employee referral, E-Verify may change the employee’s case status to E-Verify Final Nonconfirmation, after which an employer may terminate the employee.
  • Update E-Verify case. As appropriate, after a quick compare against other government databases, the employee’s E-Verify record will be electronically updated with a final conclusion either after a mismatch is resolved or no action is taken.
  • Employer closes E-Verify case. Whether it is due to not receiving a decision about contesting the TNC from an employee in the given time period or because E-Verify issued a Final Nonconfirmation, an employer will need to close the E-Verify case.

About E-Verify

E-Verify is an internet-based program available to employers to confirm the eligibility of their employees to work within the United States.

The information input into E-Verify are the same personal details collected on the Form I-9, which employees are federally mandated to complete on the first day of employment. Once entered the data is compared against records from government agencies to ensure identity and employment eligibility of an employee. Here is a comparison between Form I-9 and E-Verify:

Form I-9

Mandatory for all new hires

Does NOT require the employee to include a Social Security number

Does not require a photo on the identify documents (List B of the Form I-9)

Must be used to reverify expired employment authorization

E-Verify

Is voluntary for most employers*

Requires the employee to include a Social Security number

Requires a photo on identity documents (List B)

MAY NOT be used to reverify expired employment authorization

*E-Verify enrollment is voluntary for an employer unless they fall into one of the following categories:

  1. The employer has federal contracts or subcontracts containing the Federal Acquisition Regulation (FAR) E-Verify clause
  2. The employer has operation in a state where legislation requires it
  3. The employer has been provided an official legal ruling

More information about the E-Verify program can be found on the E-Verify website.

E-Verify Rolls Out New myUploads Feature

Resolving a U.S. Department of Homeland Security E-Verify Tentative Nonconfirmations (TNC) may now be a little more convenient as E-Verify announced their roll out of myUploads, a new feature that allows individuals to electronically upload images of required employment verification documents. The timing for myUploads is particularly a relief, given the October 2020 announcement by United States Citizenship and Immigration Services (USCIS) that they would be more diligent in enforcing their 10-day rule for employers to take appropriate action upon receipt of an E-Verify Tentative Nonconfirmation (TNC) notice.

How E-Verify Rolling out myUploads May Help

For many employees and employers the deadline of ten federal government working days can be incredibly stressful. However, E-Verify’s rollout of myUploads may help alleviate some of that stress.

This free, new feature allows individuals to electronically upload pictures of their documentation using a smart device or personal computer in an effort to quickly resolve E-Verify or Self Check DHS Tentative Nonconfirmations.

The convenience does not change the first part of the TNC process in which an employer must notify the employee of their receipt of a TNC. It is recommended that this be done discreetly, and that the employer provide the individual with a Further Action Notice (FAN) which can be instrumental in explaining the entire TNC process and provides E-Verify’s myUploads instructions.

If you have questions or concerns regarding the E-Verify program, TNCs, or the new myUploads feature, it is critical to an employer’s compliance status to review the details on E-Verify or to reach out to E-Verify directly for clarification as soon as possible.

What Is E-Verify?

Although this federal program is not currently required for every business in the nation, many employers choose to utilize this free web-based program to assist them with confirming the eligibility of employees to work in the United States.

Upon hiring, employers are required to have a Form I-9 completed for each employee. The purpose of this form as defined by the 1986 Immigration Reform and Control Act is to gather personal information and documentation from employees to help confirm their identity and eligibility to work in the U.S.

As an added layer of work authorization security, the E-Verify program is often used. Employers can open a case for an employee with information from their Form I-9. Then federal agencies such as the Social Security Administration and the Department of Homeland Security will compare that data with data of their own to further validate an employee’s work eligibility.

Currently E-Verify is available to employers and employees in all fifty U.S. states, as well as several other U.S. jurisdictions such as The District of Columbia, Puerto Rico, and the U.S. Virgin Islands to name just a few. Participation in the program is largely voluntary, unless:

  • An employer’s state legislation requires E-Verify to be used
  • An employer must use E-Verify due to an official legal ruling
  • An employer has federal contracts or subcontracts containing the Federal Acquisition Regulation (FAR) E-Verify clause

Companies with questions about whether their business is required to use E-Verify should visit the program’s website for more information.

Tentative Nonconfirmation Basics

In E-Verify terms, a Tentative Nonconfirmation or TNC is a sign that the data put into the E-Verify system does not match information on file with the government agencies of Department of Homeland Security or the Social Security Administration.

While receiving a TNC can be unsettling, there can be a number of reasons for this notice, some of which are rather benign but still require action. Among the most common situations resulting in a Tentative Nonconfirmation are:

  • Employee’s name that has not been reported to government agencies such as SSA
  • Information that contains transposed numbers
  • Incorrect information about an employee such as a wrong birth date
  • Immigration status that has not been updated
  • Citizenship status that has not been updated
  • Unverifiable identity or passport data
  • Photos that do not match

If an employer receives a TNC regarding an employee’s E-Verify case, they are required to alert the employee of the issue via a printed copy of the Further Action Notice and task them with resolving it by visiting the DHS or SSA within a specified timeframe. There are two common scenarios:

  1. The employee takes action with the SSA or DHS (whichever is applicable) to resolve the TNC
  2. The employee takes no action at all within the ten-day window set forth by USCIS

If an employee does not take action in the ten-day timeframe, an employer can label the case as Final Nonconfirmation (FNC), mark the case “Closed” in E-Verify and then terminate the employee.

E-Verify to Delete Records Older Than 10 Years

Since the passage of the Immigration Reform and Control Act of 1986, businesses have been mandated to verify the employment eligibility of new hires, and depending on each businesses state location and specific circumstances, they may be required to use E-Verify as well. Earlier this year, U.S. Citizenship and Immigration Services announced that as of June 4, 2021, it will dispose of E-Verify records dated before or on December 31, 2010. Although this practice of disposing ten-year-old records is routine, it is important for companies who may need information from E-Verify to gather it before the deadline of June 4th.

How the E-Verify Program Works

Before an employer can use E-Verify, they are required to complete a Form I-9 for the employee. This form consists of three primary sections, including:

  • Section 1: Asks employees to fill out requested personal informational no later than their first day on the job. Employers should review and ensure the form has been completed correctly.
  • Section 2: This section focuses on employment work eligibility verification. Employees must submit approved identification documents to employers. From there, employers are charged with examining the documents for authenticity. This middle section of the form should be completed within the employees first three days.
  • Section 3: The last section is reserved primarily for rehire and reverification. This is needed in the event that an employee changes their name, their work authorization expires, or they are rehired within three years of the date on the original form.

Much of the information gathered from the form will also be used to open up an E-Verify case. If using digital I-9 compliance software, it should be capable of autopopulating E-Verify fields with information from the Form I-9 so that retyping similar data is unnecessary. An E-Verify case should typically be completed by the third business day from the employee’s first day.

After an E-Verify case is opened and completed, the program then analyzes the information provided by the employer to data kept on file by government agencies for the purposes of confirming the employee’s work eligibility. The speed with which E-Verify case results are provided back to an employer can vary depending on individual circumstances.

While not all employers are required to enroll in the E-Verify program, many do for the sole purpose of alleviating some of the pressure of authenticating employees’ work eligibility. It may also be helpful in protecting against identity and document fraud.

E-Verify Records Disposal Practices

Although the USCIS made an announcement that it would be getting rid of E-Verify records dated before or on December 31, 2010, this is not a new practice. For many years U.S. Citizenship and Immigration Services have been following National Archives and Records Administration’s (NARA) protocol regarding the retention and disposal of records. The practice of disposing of these E-Verify records is in place in large part to avoid unnecessary risk related to privacy and security.

Why Businesses Should Care About the June 2021 Deadline to Pull Information from E-Verify

Businesses using E-Verify must print and file or record an E-Verify case verification number that corresponds to an employee’s Form I-9 Employment Eligibility Verification. To that end, a business may match and keep the historic records report with the correct corresponding I-9 forms.

Some companies may find it beneficial to keep this information in the instance that they are the subject of an I-9 audit or are being investigated. If an employee’s work eligibility is in question, having that documentation can be key. Without it, there may not be enough data for a company to prove the said employee was authorized for work by E-Verify at the time of hire.

Employers who require information on downloading historic records reports in E-Verify can find detailed instructions on the program’s website. Some information that can be found in a historic records report may include:

  • Original date and case number
  • Company name and location
  • Employee name and date of initial resolution, additional resolution, and final status
  • Information regarding case closure

Why It Can Pay Off to Enlist I-9 Compliance Help

Federal mandates regarding the verification of an employee’s work eligibility can be very specific and deadline oriented. The Form I-9 has three separate sections, each with their own guidelines regarding timelines for completion. In addition to that, employers must also be aware of impending deadlines to download historic records reports before they are disposed of.

With so many checklists and deadlines looming that can affect a company’s I-9 compliance status, it can be wise to enlist help. A reputable provider can help ensure that employers meet guidelines and are doing everything they can to be I-9 compliant from start to finish.

Choose a company that intimately understands employment verification from a legal perspective and all the complexities that come with obtaining and maintaining I-9 compliance. This provider must understand and keep abreast of federal and state laws regarding I-9 compliance.

Look for comprehensive I-9 compliance help that includes:

  • Form I-9 assistance
  • E-Verify assistance
  • Digital I-9 compliance software

As E-Verify deletes records older than ten years, it is a good reminder for employers to remember and observe the importance of those records’ role in potentially maintaining I-9 compliance.

2021 E-Verify Requirements for Florida

E-Verify is becoming an increasingly valuable part of the hiring process in the U.S. but is not currently mandatory for everyone. However, thanks to a law passed in the state of Florida, public and private employers in that state must comply with applicable E-Verify requirements beginning January 1, 2021. It is important to note that the new 2021 E-Verify law for Florida does not replace the current Form I-9 process. If you are one of these businesses or one of their potential employees, read on about the 2021 E-Verify requirements for Florida because your livelihood could depend on it.

About E-Verify

While the Immigration Reform and Control Act that passed in 1986 does requires businesses to verify an individual’s identity and eligibility to be eligible to work via the Form I-9, the E-Verify program is not universally mandatory for all employers.

Those businesses required to utilize the program are usually asked to do so because they are:

  1. Mandated by an official legal ruling,
  2. Entering into federal contracts or subcontracts with a FAR (Federal Acquisition Regulation) E-Verify clause,
  3. Operating in a state whose businesses must use E-Verify.

With the passage of the 2021 E-Verify law in Florida, public businesses in that state are now required to use E-Verify.

How E-Verify Works

By federal law, businesses hiring in the United States must complete the Form I-9 process in full. The document is designed to verify employee information and document authentication. The data collected in this form is then used to complete an E-Verify case.

The program is internet based and businesses must open and complete a new E-Verify case for an employee no later than the third business day after their first day at work. Once the case is completed by an employer, the program then compares that information with data already on file with government agencies.

Depending on the specific situation of the employee in question, E-Verify can typically provide verification results in just a few minutes.

2021 E-Verify Requirements for the State of Florida

The new 2021 E-Verify requirements for the state of Florida were passed in the summer of 2020 and went into effect on January 1, 2021. In order to better understand how the new law will affect businesses and individuals, it is important to breakdown a few differences between:

  • public employers
  • private employers

Public employers are generally defined as entities in either county, local, municipal, regional, or state governments or community colleges, public schools, or state universities who hire people to perform work for them for payment.

According to the new E-Verify law, public employers, contractors and subcontractors in the state of Florida are required to officially enroll in the E-Verify program and utilize it to confirm work eligibility status for all new employees.

Due to this specification, the relationship between public contractors and subcontractors becomes more complicated. Subcontractors have to provide contractors with an affidavit showing that they do not hire or work with unauthorized entities. There are some provisions for unknowingly engaging with a subcontractor in violation of this rule, but resolving the situation can still be difficult.

Private employers are generally defined as an entity or person who transacts business in Florida, has a license issued by a state agency, and employs persons to perform labor or services in Florida in exchange for either salary, wages, or other forms of remuneration. There is no minimum threshold that triggers a private employer’s obligation in Florida to comply with the E-Verify law. The Florida mandate clearly indicates that the first requirement of a private employer is to make an offer of employment to an applicant AND the applicant must accept the offer before the employer takes any action to verify the employee’s work authorization. Once these two criteria are met, a private employer in Florida may choose one of two approaches to verify the new hire’s identity and authorization to work:

  1. Utilize the Federal E-Verify program.
  2. Maintain a physical copy of an employee’s Form I-9 supporting identity and work authorization documents for a minimum of three years post the initial hire date.

One note of particular importance under this new law is that in most cases, Florida private employers are not required to verify work eligibility of a continuing employee hired before 2021.

What Could Happen If You Violate the New 2021 E-Verify Law for Florida

For both public and private companies who have done business in Florida for many years prior, this new law can bring sweeping change, and with it an overwhelming amount of work. While all the extra effort required may be tempting to ignore, it is illegal to do so.

Depending on the unique set of circumstances surrounding each violation, those who do not abide by the new Florida E-Verify law may face significant punitive consequences that could result in:

  • Licenses being withheld until an affidavit is provided,
  • Permanent revocation of licenses for a specific business location,
  • Complete revocation of licenses for a business to operate.

No business wants to find themselves without a license to operate when a little extra legwork to comply with the new Florida E-Verify law could have easily prevented it.

How To Simplify the E-Verify Process with Digital Form I-9 Compliance Software

One of the most overwhelming aspects of the Form I-9 and E-Verify process for employers is that it requires a great deal of information processing, which can lead to costly errors. However, employers may find that using digital I-9 compliance software can provide two key perks when it comes to also using E-Verify for employee work eligibility verification:

  1. Accuracy. Digital compliance software is designed to help employees and employers complete an I-9 form with minimal chances of human error. This is key as the information entered digitally into a Form I-9 is then used to auto-populate E-Verify program fields. The minimization of human error in one program leads to the same in E-Verify.
  2. Efficiency. To fill out a Form I-9 for an employee by hand and then manually enter information into an E-Verify case can be time consuming because it is twice the work, something many employers just don’t have time for. By using a digital Form I-9, it allows that information to be seamlessly transferred to E-Verify case fields without much extra effort. The software can save employers valuable time in the long run.

Any business in Florida should consider incorporating digital I-9 software that integrates with E-Verify into their hiring processes to ensure compliance and avoid common mistakes.

Why You Shouldn’t Depend Solely on E-Verify

When it comes to Form I-9 compliance, a multi-tiered approach is best because depending on one resource alone can leave employers exposed to expensive mistakes that could have been avoided. This is just one of the reasons why you shouldn’t depend solely on E-Verify. Ideally, employers should utilize digital I-9 compliance software as well as the E-Verify program for optimal compliance coverage that can provide added peace of mind.

 

Filling Out the Form I-9

The Form I-9 is the first order of business for employers and new employees. This documentation is required to verify an employee’s identity and employment eligibility in the U.S. There are three main sections to the Form I-9:

  1. Section 1. This first section of the form deals primarily with employee information. An employee is required to complete this section by their first day of employment. Employers must ensure it is completed correctly.
  2. Section 2. This second section deals with identity verification and employer review and must be completed within three business days of the employee’s first day of work. Employees are required to provide approved Form I-9 documents to an employer. The employer then must examine and when appropriate vouch for their apparent authenticity.
  3. Section 3. This last section is dedicated to rehires and reverifications. If an employee’s work authorization expires, their name legally changes, or they have been rehired within three years of the date on the original Form I-9, this section must be completed.

While the Form I-9 is universally mandatory for employers in the United States, some helpful resources such as digital I-9 compliance software and E-Verify are not.

 

E-Verify, the Program

E-Verify is a federal program that enables employers to ensure their employees are eligible to work via matching a Form I-9 to an individual’s files on record with the Department of Homeland Security and Social Security Administration. In many cases the program also offers a photo identification for identity comparison.

An employer that has enrolled in the E-Verify program can open a case to verify an employee’s work eligibility. After submission, employees may hear back in under twenty-four hours while other more complex cases may take extended amounts of time. E-Verify will let an employer know about a case’s final results or issues with a case as soon as possible.

While E-Verify is primarily voluntary, enrollment can be required for some employers if:

  • They have federal contracts or subcontracts including the Federal Acquisition Regulation (FAR)
  • They are geographically located in a state mandating enrollment in E-Verify
  • They are mandated to do so via a legal ruling

The E-Verify program is largely considered to be an asset when used in conjunction with digital I-9 compliance software, but it may not be wise to depend on it alone.

 

Why You Shouldn’t Depend Solely on E-Verify

In the quest to be Form I-9 compliant, it can be tempting to rely entirely on E-Verify to alert users to transposed numbers and potential eligibility issues. However, using E-Verify alone without the assistance of digital Form I-9 software can leave users susceptible to costly missteps.

Some of the features offered by digital I-9 compliance software that offer an extra layer of protection for the employer and that are not used by the E-Verify program alone are:

  • Validation of input. When an employer fills out a Form I-9, digital software is designed to assist with catching common human errors that can occur when inputting information. Catching these mistakes before the form is submitted may result in the reduction or avoidance of penalties that can be issued for submitting an incomplete form.
  • Minimization of input. An employee that fills out a hardcopy of a Form I-9 by hand requires an employer to manually type in that information into E-Verify with an eye for detail. By using digital software, the data put into a digital Form I-9 can automatically populate E-Verify fields to cut down on input errors that result from retyping information over and over.
  • Alerts of duplicated forms before submission. Digital software is designed to recognize duplicate information in Form I-9s and if found usually sends an alert to an employer before the form is officially submitted. This can essentially cut down on accidental duplicates or intentional fraud.
  • Practice encouraged. When working with digital software, there is typically a component that lets an employer practice entering information first, rather than beginning with a real employee. This can help an employer feel more confident about the process when beginning to enter employee information in earnest.
  • Paperless digital trail. The digital I-9 compliance software permits employers to securely and digitally store forms that are also searchable and retrievable.
  • Tracking capabilities. When completing Form I-9s by hand, it can be overwhelming for employers to try to keep up with tracking expired work authorizations, as well as when forms should be purged. Digital compliance software includes a feature that alerts employers of these potential problems before they become a compliance issue.

 

Potential Consequences for Not Being Form I-9 Compliant

Being I-9 compliant is not just a good rule of thumb, it is the law via the Immigration Reform and Control Act of 1986. Companies that are found in an audit not to be in compliance can be issued criminal and civil violations.

Criminal violations tend to be the more serious of the two. This type of offense generally involves illegal patterns of recruiting, hiring, or referring unauthorized aliens for a fee. Each instance of a criminal violation can be assigned a penalty, which can add up quickly for companies.

Civil violations pertain more to employment verification requirements, knowingly hiring or continuing to employ an unauthorized individual for employment, document abuse, document fraud, and failed notification of non-confirmation regarding an employee’s employment eligibility.

 

It is worth noting that the number of Immigration and Customs Enforcement (ICE) worksite investigations regarding I-9 compliance have quadrupled in recent years, with many estimating the trend will continue for the foreseeable future. With investigations on the rise, companies simply cannot afford to be found out of compliance with federal law. If you have questions about Form I-9 protocol, E-Verify, or compliance, please reach out to Lookout Services today.

Is E-Verify a Background Check?

Courtesy of the 1986 Immigration Reform and Control Act, businesses nationwide are required to both verify and authenticate their employees’ legal eligibility to work in America. The legally required document which helps verify an employee’s eligibility to work is the Form I-9. An often-required complement to the Form I-9 is the E-Verify system. While both components deal with the legality of work eligibility, neither the Form I-9 nor E-Verify constitutes a criminal background check.

The Form I-9 is a legal document provided by the government that must be completed by both employers and employees within the proper timelines stated on the form. The form gathers important personal information from the employee regarding work eligibility, requires employers to verify identification documents provided by the employee, and handles proper documentation for eligibility follow up and rehires. The Form I-9 cannot be utilized to perform a background check.

E-Verify is, in some cases, an optional add-on service that complements the Form I-9. The system allows enrolled employers to match employees’ Form I-9 information against records accessible by the Department of Homeland Security and the Social Security Administration. E-Verify is not to be used for a background check as it only verifies work eligibility and does not review a potential employee’s criminal history.

A company that requires its employees to have a legal work eligibility status and a background check should be Form I-9 compliant, consider utilizing E-Verify, and do a thorough background check or hire an employment screening service.

E-Verify Expansion in Iowa to Come?

Everyone is talking about immigration policy these days, but another debate is taking place among Iowa lawmakers considering mandating E-Verify for all businesses. While immigration law remains exclusively in the hands of Congress by virtue of the Constitution, a few avenues exist for states to contribute to the discussion in a roundabout way. Several states have weighed in by requiring some or all businesses to use the E-Verify system to validate the work eligibility of new employees. Iowa is the latest state to consider the measure.

How Border Wall Shutdown has Shutdown One “Electronic Border Wall”

On December 22, 2018,  the federal government officially shut down following contention over the proposed border wall. However, while the shutdown may be rooted in immigration concerns, the shutdown’s impact on immigration services will be relatively limited. This is because most of the organizations involved in U.S. immigration are deemed “essential agencies,” so they will continue operating as normally as they can. Further, funding has already been appropriated for many other agencies relevant to immigration, so as long as the money is there, these organizations will also remain open.

Still, when the government shuts down, confusion ensues. For employers and their workers, here is what you need to know:

Are E-verify and the I-9 Form affected by the shutdown? 

Almost all federal agencies responsible for immigration will remain fully operational during the shutdown. So, how is immigration being impacted by the government shutdown?

The brunt of the impact will fall on E-Verify, which is an essential tool for employers that need to verify work authorization. The I-9 Form process, though, is still required for authorizing new hires.  Here is what the government shutdown means for the process:

  1. Form I-9 – Form I-9 remains mandatory under federal law, and new hires should still be required to fill out the form with their employer. It is important to note that even while the government shutdown is in effect, employers are still required to verify their employees.During a government shutdown, the I-9 Form process remains unchanged. That includes deadlines, so employers must still fill out the form within three days of hiring a new employee. New hires must also provide the proper identifying and work authorizing documents, adhering to the same timeline. Should the company’s I-9 Forms be audited at a later date, the auditing agency will expect any I-9 Forms filled out during a shutdown to be compliant in every way. That includes how the form is retained, so companies should not alter their I-9 Form processes, assuming they are already in compliance.
  2. E-Verify – The Department of Homeland Security’s E-Verify website will be unavailable during the government shutdown. This means that nearly all of the shutdown’s impact on immigration will be centered on the program.Because it will be taken offline until the shutdown is resolved, E-Verify cannot be used to verify an employee’s work authorization, even in states where it is a required step. Further, it is currently impossible to enroll in E-Verify or terminate an account, to create a case in E-Verify, to take any action on an ongoing case, to add or manage any user credentials, to run any reports or to resolve Tentative Non-confirmations, or TNCs. In other words, employers won’t be able to access any part of the website.As long as the government remains in shutdown mode, employers will be given leniency regarding E-Verify use. Specifically, the three-day deadline has been suspended, so employers are not required to begin an E-Verify case within three days of hiring an employee. Also, if there are any ongoing TNCs, they do not have to be resolved until the government is no longer shutdown. Employers have been cautioned not to take any action against an employee who has received a TNC, or an employee whose case has been stalled as a result of the shutdown. These cases should be addressed further once the shutdown has ended.

What is not affected by the government shutdown?

Multiple federal agencies are involved with immigration, and most of them will continue functioning as normal. Those agencies include:

  • Customs and Border Protection (CBP) – As CBP is one of the aforementioned essential agencies, it will continue operating through the government shutdown. That means CBP will still provide inspections at the Mexican and Canadian borders and will also enforce U.S. laws at the borders.
  • Immigration and Customs Enforcement (ICE) –ICE is another essential agency and will also remain open during the shutdown. As such, employers should not expect ICE-run audits and inspections to cease or slow down during this time.
  • Student and Exchange Visitor Information System (SEVIS) – Another essential agency, SEVIS will also operate during the shutdown. It is essential that universities remain compliant with any regulations related to SEVIS, as it is considered important for national security.
  • United States Citizenship and Immigration Services (USCIS) –USCIS is a critical organization for ensuring the smooth flow of people in and out of the country. Fortunately, USCIS is funded by application and petition fees, so it will remain funded through the shutdown.
  • Department of State (DOS) –DOS is not an essential agency and funding has not been set aside for the organization. However, DOS expects U.S. embassies and consulates to process visa applications as normal, as long as visa filing fee reserves remain. DOS has also confirmed that passport services will still function normally, unless those services are provided in a federal building that has been shut down.
  • Passport Offices – The Department of State says that the only passport offices affected by the government shutdown are those located within a federal building that has been closed due to the shutdown.

 

  • Department of Labor (DOL) –Funding has already been appropriated for the DOL through the 2019 fiscal year. As such, it is unaffected by the shutdown, which means current wage determinations, PERM processing and labor certifications will not be halted.

Government shutdowns bring a lot of uncertainty to the private sector, but employers and their employees won’t have to change much as a result. While E-Verify is down, the I-9 Form process remains unaffected, and the agencies responsible for immigration law enforcement are still up and running. Employers, then, should consider it business as usual when it comes to authorizing workers.

 

Details Behind the TNC

The “Tentative Non-Confirmation” or TNC is the 2nd most common response users see from the E-Verify system following the “Authorized to Work” response. The reason this is a “tentative” non-confirmation is that the system sees some commonality between the employee’s information and a record in the system. However, there is not enough coinciding information to allow for a match and a definitive system response. It is extremely likely in these cases that a typo exists somewhere in the employee’s data.

A TNC is typically the result of a clerical error in Section 1 of Form I-9. It is important that you double or even triple check the employee’s personal information in these cases before you continue processing the E-Verify case. Often, a typo in the entered information will halt the confirmation. Here are a few common mistakes to look for:

  • Last name/first name backwards
  • Social Security number typed wrong
  • Incorrect date of birth

These seem like very simple errors not to make, but that is exactly why they are made. Whether caused by rushing, complacency, or unfamiliarity with the computer system these mistakes are common; so look for them.

After making corrections, return to E-Verify and continue processing the case. This will update E-Verify with the corrected information and hopefully change the case status to authorized. But remember, typos and human error can occur on both sides of the system. If you’ve checked and rechecked the employee’s information and can’t find a mistake, it is possible that the error exists on the government’s side. If you determine that the information in Section 1 is accurate and that the government’s data was entered wrong the employee will need to “Contest” their case status.

The final case result would determine the procedure to follow to “contest” the findings. Simply follow the on-screen instructions and print the necessary documents.

We will cover some of these case results in more detail a future issues.