However time-consuming and complicated, accurate completion of the Form I-9 is the best way for employers to avoid legal consequences for employing illegal staff, especially during increased immigration enforcement.
As an internet-based system that compares data from a worker’s Form I-9 to information from the Department of Homeland Security (DHS) and Social Security Administration (SSA) records, E-Verify allows companies to ensure having an officially authorized labor force. Still, participation in E-Verify does not remove an employer’s obligations to comply with the I-9 process. Instead, E-Verify and I-9 are used together to validate that an employee is authorized to work in the U.S.
Form I-9 was created by the Immigration Reform and Control Act of 1986. Its aim is to prevent the employment of undocumented immigrants to work in the U. S., as well as to prevent workplace discrimination based on citizenship or national origin. To comply with this law, employers need to verify the identity and employment authorization of each person they hire and to complete and retain the Form I-9 for each employee.
Form I-9 key points that employers always need to remember are:
- Newly hired employees have to complete and sign Section 1 of the Form I-9 no later than the first day of work for pay. Employees are obliged to present to the employer an original document or documents that prove their identity and employment authorization within 3 business days of the date employment begins.
- Employers need to use the documents presented by the employee to complete and sign Section 2 of the Form I-9 within 3 business days of the first day of work for pay. They are required to physically examine each document to determine if it reasonably appears to be genuine and relate to the employee presenting it.
- Employers have to keep original I-9 forms for three years after the date of hire, or one year after the date employment ends, whichever is later. It is advisable to store the forms separately from other personnel files.
- Hiring employees without complying with the employment eligibility verification requirements is a violation of the law. Employers that fail to properly complete or retain Forms I-9 could be subject to civil fines. Also, knowingly hiring or continuing to employ individuals who are not authorized to work in the U. S can result in criminal penalties.
The DHS in partnership with the SSA maintains a central database of valid Social Security numbers and the names of individuals associated with each. This system, called E-Verify, allows participating employers to verify a newly hired worker’s employment eligibility electronically. E-Verify also has a photo-matching feature, which occurs automatically for employees who have presented a passport, Permanent Resident Card, or an Employment Authorization Document.
If the information provided by the employee matches that in the E-Verify database, the employer receives a confirmation of authorized employment. However, if the information does not match, a Tentative Non-Confirmation (TNC) is returned, prompting both the employee and employer to take steps toward resolving the matter.
For many employers, using E-Verify is voluntary, but for federal contractors and employers in some states, it is mandatory.
There are several reasons why employers should participate in E-Verify:
- E-Verify prevents companies from hiring ineligible workers because it notifies an employer when an employee’s social security number does not match government records.
- E-Verify and the security it provides in ensuring a legal workforce can help many employers, especially those with large payrolls and multiple offices throughout the country.
- E-Verify creates a rebuttable presumption that an organization that complied with E-Verify in good faith did not knowingly hire an unauthorized worker.
- Given the steps taken in expanding the E-Verify program to mandatory nationwide use, adopting it earlier gives employers more time to adapt to it.
E-Verify and I-9 Differences
There are some key differences between E-Verify and Form I-9. Not understanding them leads to misuse of both processes and other severe complications.
- Form I-9 is mandatory for all employers, while E-Verify is voluntary for most businesses.
- A social security number is not required for employment eligibility verification and asking a potential employee to provide a social security card for I-9 purposes is considered a substantive violation. On the other hand, E-Verify requires a social security number.
- A photo on identity documents is not necessary for I-9 completion, whereas E-Verify requires it.
- Form I-9 has to be used to re-verify expired employment authorization, while E-Verify cannot be used to that end.
Practical Approach to Managing E-Verify and I-9
Employers often think of E-Verify as the electronic equivalent of Form I-9, even though E-Verify and I-9 completion are two distinct processes. However, what both processes have in common is compliance that can be difficult to manage, especially when dealing with paper I-9 forms.
76% of paper I-9 forms contain at least one error and they add up in the way of fines. On the other hand, an electronic I-9 software, integrated with E-Verify, helps ensure accurate form completion with automated error checking, which is necessary in the light of the recent increase in enforcement by the U.S. Immigration and Customs Enforcement (ICE). Electronic employment verification allows employers to easily create compliant I-9 forms with a real-time dashboard, data validation, and automatic submission to E-Verify. As a result, employers can facilitate E-Verify and I-9 compliance by transforming manual procedures into an automated online process with electronic forms and documents, electronic signatures, and audit trails.