New Developments in Employment Eligibility Requirements & the E-Verify Online System

A few months ago, the Department of Homeland Security (DHS) published new regulations relating to the unlawful hiring or continued employment of aliens who are not authorized to work in the U.S. These new regulations describe the legal obligations of an employer: (1) when the employer receives a “no-match” letter from the Social Security Administration (SSA) informing them that an employee name and reported social security number do not match SSA records, or (2) when the employer receives a letter from DHS notifying the employer of problems with its I-9 employment verification forms. If implemented, these regulations could impose “constructive knowledge” on U.S. employers. Therefore, DHS could conclude that an employer hired illegal workers if the SSA/DHS records are not corrected or the affected employees are not terminated.

The good news is that as a result of a Federal lawsuit, implementation of these regulations is currently on hold. The bad news is that DHS is determined to place the burden on employers and is working quickly to expand this area of enforcement. Employers are being held to a much higher standard than before. Deficiencies in employment eligibility paperwork can expose employers to administrative fines and civil penalties, as well as possible criminal prosecution. In light of these warning signs, it is imperative that employers engage in proper hiring practices and policies.

One helpful tool to employers is the U.S. Customs and Immigration Service’s (USCIS) new E-Verify system. E-Verify is a free web-based system that allows participating employers to electronically verify the employment eligibility of newly-hired employees. Federal law requires that all employers verify the identity and employment eligibility of all new employees (including U.S. citizens) within three days of hire.

Employers are required to complete a Form I-9, and employees must provide employers with documentation establishing both identity and eligibility to work in the United States. The E-Verify program electronically compares new employee information taken from the employee’s I-9 form with more than 425 million records in the Social Security Administration’s database and more than 60 million records in the DHS’s immigration databases.

In order to use the E-Verify system, an employer must register and agree to certain terms and conditions. The system first checks the data against the employee’s SSA records to determine if the employee is a U.S. citizen and therefore given immediate employment eligibility confirmation. If the individual is not a U.S. citizen or is otherwise unauthorized to work, then the employer will receive a tentative non-confirmation. The individual may appeal this non-confirmation decision by personally going to their local SSA office. A new feature even allows an employer to compare the photo of an employment authorization document or a permanent resident card against those in the database in order to determine whether the presented document is genuine or false. E-Verify is a quick and easy way to assist employers in verifying the employment eligibility of all newly-hired employees.

If your company wishes to participate in E-Verify, as a user, designated agent, or corporate administrator, or if your company is interested in the web-service access method, you can visit the E-Verify website at http://www.uscis.gov/e-verify for more information.

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