Form I-9 and E-Verify are essential tools used by U.S. employers to meet their obligation to verify the identity and employment eligibility of their employees working in the U.S. These processes ensure compliance with federal immigration laws and help maintain a legal workforce.

Form I-9:

Form I-9, officially known as the Employment Eligibility Verification Form, is a document mandated by the U.S. Citizenship and Immigration Services (USCIS). Employers are required to complete Form I-9 for every employee hired in the United States, including citizens and noncitizens.

Key components of Form I-9 include:

  • Employee Information (Section 1): This section requires the employee to provide personal information such as their full name, date of birth, immigration status and contact details.
  • Employer Verification (Section 2): Employers are responsible for reviewing and verifying the authenticity of documents provided by the employee as proof of identity and employment eligibility.

    Lists of Acceptable Documents: Form I-9 provides a list of acceptable documents that employees can present to establish their identity and eligibility to work in the United States.
  • Certification: Both the employee and the employer must certify, under penalty of perjury, that the information provided is true and accurate to the best of their knowledge.

Form I-9 Timing Requirements:

The Employee Information Section (Section 1) of the Form I-9 must be completed on, or before the employee’s first day of work for pay. Section 1 may not be completed before an offer of employment has been extended and accepted by the employee.

The Employer Verification (Section 2 ) of the Form I-9 must be completed within three days following the employee’s hire date ( for example, if the employee is hired on a Monday, they must present their documents for review on , or before, Thursday).

Employers must reverify temporary work authorization documents prior to their expiration date. This information is completed using Supplement B of the Form I-9.

Prohibitions Against Discrimination:

While the goal of the Form I-9 is to ensure that U.S. employers are not employing unauthorized workers, there are also protections for workers against discrimination that employers must follow. Employers must treat all employees equally with regard to the Form I-9.

Specifically:

  • Don’t have different rules or requirements because of someone’s national origin, citizenship, or immigration status. You must allow each person to choose which documents to present from the Lists of Acceptable Documents. For example, you cannot request that non-U.S. citizens present DHS-issued documents. Both U.S. citizens and non-U.S. citizens may present a driver’s license (List B) and an unrestricted Social Security card (List C) to establish identity and employment authorization if they wish. However, you must reject documents that do not reasonably appear to be genuine or to relate to the person presenting them, regardless of their citizenship status or national origin.
  • Don’t request to see employment eligibility verification documents before hiring an employee or having them complete Form I-9 before hire because they look or sound “foreign,” or because they state they’re not a U.S. citizen.
  • Don’t refuse to accept a document or refuse to hire someone because their document has a future expiration date.
  • Don’t request specific documents from someone to create an E-Verify case or because of an E-Verify Tentative Nonconfirmation (mismatch).
  • Don’t request that someone create a Self Check case and/or provide proof that they confirmed employment eligibility with Self Check.
  • Don’t request that someone who presented an unexpired Permanent Resident Card present a new document when the Permanent Resident Card expires.
  • Don’t request specific documents for reverification. For example, you should allow an employee who presented an unexpired Form I-766, Employment Authorization Document, during initial verification to present any document from either List A or C during reverification.
  • Don’t limit jobs to U.S. citizens or other statuses unless U.S. citizenship is required for the specific position by law; regulation; executive order; or federal, state, or local government contract.

*Source: 11.4 Avoiding Discrimination in Recruiting, Hiring, and the Form I-9 Process

Failure to comply with Form I-9 requirements can result in severe penalties for employers, including fines and legal sanctions.

E-Verify:

E-Verify is an electronic system operated by the Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA). It allows employers to electronically verify the employment eligibility of newly hired employees by comparing information from Form I-9 against government databases.

Participants in E-Verify must create cases for all new employees. It is important to note that there is a possibility for false positives as well as false negatives. If E-Verify is initially unable to confirm an employee’s work authorization ( referred to as a tentative non-confirmation), employers must not assume that this means the employee is not authorized to work. Numerous factors, such as name changes, can hinder E-Verify’s immediate confirmation of work eligibility.. Employers must follow E-Verify’s process to permit the employee to resolve any issues with the SSA and/ or DHS databases . It’s imperative that no adverse employment actions are taken solely based on a tentative non-confirmation. Employers must await a final non-confirmation notification from E-Verify before any such actions are considered. This ensures fairness and compliance with legal requirements, safeguarding both the rights of the employee and the integrity of the hiring process.

Use of this system remains voluntary for many employers, however certain states, as well as Federal Contracts which contain the FAR E-Verify clause may require and employer to use E-Verify.

States With Mandatory E-Verify for All or Most Businesses

Below are the states that require all or most businesses to use the E-Verify system when hiring new employees:

Alabama
Arizona
Florida
Georgia
Louisiana
Mississippi
North Carolina
South Carolina
Tennessee
Utah
States Requiring Public Employers to Use E-Verify

States That Require Public Employers To Use E-Verify

Colorado
Idaho
Indiana
Michigan
Minnesota
Missouri
Nebraska
Oklahoma
Pennsylvania
Texas
Virginia
West Virginia

States With Local/Municipal Requirements for E-Verify

Colorado (Denver)
Florida (Hernando County, Bonita Springs)
Michigan (Ingham County, Macomb County, Oakland County)
Missouri (O’Fallon)
Nebraska (Fremont)
Washington (Hoquiam, Pierce County, Woodland)

Key features of E-Verify include:

Verification Process: Employers enter information from Form I-9 into the E-Verify system, which then checks it against records maintained by the DHS and SSA to confirm the employee’s eligibility to work in the United States.

Immediate Results: In most cases, E-Verify provides instant verification of employment eligibility. If the information provided matches government records, the employee is confirmed as eligible to work. If there’s a mismatch, the system provides instructions on how to resolve the discrepancy.

Employer Responsibilities: While participation in E-Verify is voluntary for most employers, some states and federal contractors are required by law to use the system. Employers must ensure that they use E-Verify consistently and in compliance with applicable laws and regulations.

Data Security: E-Verify is designed to protect the privacy and security of employee information. Employers are required to use the system responsibly and safeguard sensitive data to prevent identity theft or misuse.

Conclusion:

Form I-9 and E-Verify play crucial roles in the employment verification process, helping employers maintain a legal workforce and comply with federal immigration laws. While neither the Form I-9 nor E-Verify can confirm with absolute certainly that a worker is authorized, the accurate and timely completion of the Form I-9 and, where applicable, using E-Verify, are an employer’s good faith defense that they take all necessary steps to ensure that they hire and retain employees who are authorized to work in the United States. Compliance with these requirements is not only a legal obligation but also a fundamental aspect of responsible and ethical business practices.

Form I-9 and E-Verify compliance can be complex and employers are encouraged to speak with an immigration expert for guidance.