Common E-Verify Mistakes that Employers Make


Emptech's founder, Jeff Aleixo


Jeffrey Aleixo

Common E-Verify Mistakes that Employers Make

To stay compliant with the Immigration Reform and Control Act of 1986 and prevent penalties for hiring illegal workers, employers need to verify the eligibility of prospective employees to work in the U.S. by gathering information on Form I-9. One way to do this is by using E-Verify, a web-based system through which employers electronically confirm the employment eligibility of their employees.

However, when using E-Verify, it is critical that employers ensure proper completing, maintaining, and submitting forms through the employee verification network provided by U.S. Immigration and Customs Services (USCIS). Failing to do so can lead to frustrating inconveniences and severe legal consequences. At the same time, having a clear knowledge of common E-Verify mistakes that may arise helps employers minimize difficulties in the process, avoid acting unlawfully or violating anti-discrimination rules pertaining to employment validation documents.

How E-Verify Works?

In the E-Verify process, employers create cases based on information taken from an employee’s Form I-9, Employment Eligibility Verification. E-Verify then electronically compares that information to records available to the U.S. Department of Homeland Security (DHS) and the Social Security Administration (SSA). Employers usually receive a response within a few seconds either confirming the employee’s employment eligibility or indicating that the employee needs to take further action to complete the case.

In order to use E-Verify, employers need to sign the E-Verify Memorandum of Understanding (MOU) and use an enrollment checklist. E-Verify does not apply to the hires before the MOU is signed. All federal contractors and subcontractors are required to use E-Verify for all employees except those who were hired before November 6, 1986. For other employers, participation is voluntary. However, a number of states that are adopting E-Verify and requiring employers to use it are on the rise.

E-Verify is administered by SSA and USCIS. USCIS facilitates compliance with U.S. immigration law by providing E-Verify program support, user support, training, and developing innovative technological solutions in employment eligibility verification.

Also, USCIS gets an insight into employers’ I-9 processes by tracking and documenting their use of E-Verify. As a result, any pattern of non-compliance, failure to meet the terms of the employer’s E-Verify MOU, or any disregard of Form I-9 and E-Verify procedures cannot go unnoticed. Consequently, employers can find themselves facing heavy fines and civil penalties, which makes it even more important to pay special attention to the employment verification process and prevent potential E-Verify mistakes.

Ensure a thorough understanding of the laws and regulations that must be followed in order to prevent a business from creating I-9 compliance violations with this detailed I-9 verification guide.

Avoiding E-Verify Mistakes and Ensuring Compliance

Here is an overview of common mistakes employers are likely to make with E-Verify:

Not Knowing the Differences between the Form I-9 and E-Verify

One of the common E-Verify mistakes is that the majority of employers incorrectly think that E-Verify is the electronic equivalent of Form I-9. While the two are used together to validate that an employee is authorized to work in the U.S., E-Verify does not replace Form I-9.

Also, Form I-9 is mandatory for all employers and filled out by both the employee and the employer, while E-Verify is voluntary and is only handled by the employer or its representative. Finally, unlike E-Verify, Form I-9 is used in order to re-verify and authorize expired employment.

Failing to Create a Case in Three Days

It is not easy to complete the Form I-9 by the third business day, but delays can be even worse in E-Verify since employers have to take the additional step of verifying that an employee’s Form I-9 information matches government records.

However, meeting this requirement and preventing one of the common E-Verify mistakes is essential. If the case was not created by the third day after the employee started work for pay, employers need to indicate the reason for this delay in the drop-down list in E-Verify or state a specific reason in the field provided.

Improper Handling of Tentative Non-Confirmations

Occasionally, a mismatch may occur between the information submitted through E-Verify and those on file with the SSA or the DHS. In such cases, a Tentative Non-Confirmation (TNC) notice may be returned, indicating the mismatch and obliging employers to notify the employee immediately.

TNCs are not grounds for immediate termination of employees, but their improper handling is one of the common E-Verify mistakes. Instead, based on whether or not an employee elects to contest the non-confirmation, one of two courses of action must be followed.

If the employee decides not to challenge the TNC, the employer is permitted to terminate the individual. However, if the employee agrees to contest the notice, they need to contact the proper federal organization to remove the mismatch within eight government workdays from the time of the non-confirmation. When the mismatch is resolved, an Employment Authorized result will be returned. Otherwise, a final non-confirmation will be sent, giving the employer justification for firing the employee.

Also, employees are allowed to continue working while this issue is being addressed. Therefore, employers can neither prevent employees from contesting TNCs nor stop them from working during the resolution period.

Violating Anti-Discrimination Laws

According to the Immigration and Nationality Act, businesses cannot engage in inequitable practices during the work validation process. In addition to this, employers have to prevent one of the common E-Verify mistakes and that is rejecting documents that seem to be reasonably legitimate. Otherwise, they may be charged for discrimination against employees.

At the same time, employers cannot accept documents that have a strong appearance of being fraudulent, while employees only need to submit materials that are required by federal law for establishing employment eligibility.

Meeting E-Verify Requirements

While E-Verify can be a challenge for employers, it also offers many benefits. E-Verify participation allows employers to ensure a legal workplace with workers verified as eligible to work in the U.S. It is also helpful for potential employees because it speeds the hiring process along. However, to both protect the employees’ rights and avoid unnecessary fines and lawsuits, employers need to pay special attention to common E-Verify mistakes.

Employment eligibility immigration non-compliance can lead to serious consequences, especially in light of government worksite compliance audits and stricter E‐Verify laws and regulations. Therefore, it is vital that employers take necessary steps to reduce E-Verify mistakes, and carefully review their hire processes to ensure they are compliant and audit-ready.

To simplify this, employers can streamline the E-Verify process and ensure a legal workforce while reducing errors and digitalizing paperwork. Even if a non-verification or a TNC is returned, employers can tackle this difficult process until completion and view in real-time the status of an E-Verify case to ensure taking the right steps. Thus, they minimize risk exposure and stay fully compliant in the wake of changing regulations, intensified immigration audits, and expanding E-Verify requirements.

Start using a simple and efficient way to navigate I-9 verification, prevent costly mistakes, stay compliant, and speed up the E-Verify process.
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