*Excerpted from the soon to be released “Employer’s Immigration

Compliance Guidebook”, copyright 2008. Greg Siskind is a

shareholder at Siskind Susser Bland, P.C. and can be reached at

gsiskind@visalaw.com or from his web site at www.visalaw.com.

Last summer, the Bush Administration announced plans to

eventually require all employers in the US to use the E-Verify

electronic employment verification system to document that

workers are legally being employed in the US. A number of states

are moving independently to require employers to use the system

as well.

1. What is E-Verify?

E-Verify, formerly known at the Basic Pilot Program, is a free

Internet-based system that employers use to confirm the legal

status of newly hired employees. It is mandated by the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996

(IIRAIRA). The system compares social security number data and

information in DHS’ immigration databases to the employee’s name

and other Form I-9 information to confirm the employee matches.

SSA has 425 million numbers in its database and DHS has sixty

million records in its system. If an employee’s information does not

match up, USCIS will notify the employer of the non-confirmation.

The average response time in E-Verify is three to five seconds.

2. How many employees are typically run through E-Verify in

a year?

Right now there are over 33,000 employers using E-Verify. During

the most recent fiscal year, nearly two million queries were made in

the E-Verify system. That number is expected to increase

dramatically as several states are requiring E-Verify be used by the

states’ employees. 92% of verification queries are instantly

verified. According to DHS, the top industries using E-Verify are

food services, drinking establishments, administrative and support

personnel, professional and technical services, other information

services and clothing and accessories stores.

3. Who administers E-Verify?

E-Verify is a partnership of the Department of Homeland Security

and the Social Security Administration which is administered by US

Citizenship and Immigration Services,

4. How does E-Verify work?

Employers submit information provided on an employee’s Form I-9

in to the E-Verify web site. The E-Verify system will return one of

three results:

- “employment authorized”- the employee is employment

authorized

- “SSA Tentative Non-Confirmation” – the Social Security

Administration database is showing the employee’s name

and social security number are not matching

- “DHS Verification in Process” – The Department of

Homeland Security will respond within 24 hours with either

an Employment Authorized or DHS Tentative Non-

Confirmation

If a worker shows up as “employment authorized” the employer will

record the system-generated verification number on the Form I-9.

If a employer gets a “tentative non-confirmation”, the employer

must promptly provide the employee with information about how to

challenge the information mismatch and the employee can then

contest the determination and resolve the mismatch with the Social

Security Administration or Department of Homeland Security. The

employee will have eight days to resolve the issue. The employee

may continue to work with the case is being reauthorized.

If the employee does not contest the finding, the determination is

considered final and the employer may terminate the employee and

resolve the case.

Employers are also required to post a notice in an area visible to

prospect employees that the company is an E-Verify participant.

And the employer must post an anti-discrimination notice issued by

the Office of Special Counsel for Immigration – Related Unfair

Employment Practices, Department of Justice (DOJ) in an area

visible to prospective employees.

5. What computer requirements are necessary to use EVerify?

Users need an Internet-capable Windows-based personal computer

and a web browser of Internet Explorer 5.5 or Netscape 4.7 or

higher (with the exception of Netscape 7.0).

USCIS warns employers to “white list” the email address

Employer.Pilots@dhs.gov in their spam filters.

6. Can a company batchload data to E-Verify?

Yes. DHS has a real-time batch method that requires a company

develop an interface between its personal system or electronic Form

I-9 system and the E-Verify database. Employers interested in more

information on this including design specifications, should call 800-

741-5023.

7. What is the required timetable for using E-Verify?

An employer can complete E-Verify any time after an offer of

employment is accepted and after the Form I-9 is completed. This

can be before the start date (as long as an employer is not prescreening applicants),

but in no case later than three business days after the new employee’s actual start date.

Note that this doesn’t apply in cases where there is no social security number and then

the employer should wait until the number is available (see

question below regarding employees without social security

numbers). A query may be submitted before the actual start date,

but the employer needs to be careful not to pre-screen applicants

and may not delay training or an actual start date based on a

tentative non-confirmation and employee may not face adverse

consequences as a result of the use of E-Verify unless a query

results in a non-confirmation. And an employer cannot accelerate a

start date for a worker because employment authorization is

confirmed. Employers also must always be consistent in the timing

of a query so as to avoid discrimination.

8. Does E-Verify tell an employer anything about the

immigration status of a new hire?

No. The system only verifies an employer’s authorization to work

and not immigration status.

9. What is E-Verify’s photo screening tool?

The E-Verify photo tool was incorporated in to E-Verify in

September 2007 and enables employers to match the photo on an

employee’s Employment Authorization Document (EAD) or a

Permanent Residence Card (“green card”) to the photo that USCIS

has on file for that employee. The tool enables employers to detect

instances of document fraud.

10. What information does an employer need to supply

for each employee?

After an employee completes an I-9, the employer must submit a

query that includes

- The employee’s name and date of birth

- The Social Security Number (SSN)

- The Citizenship status he or she attests to,

- An A number or I-94 number, if applicable,

- The Type of document provided on the Form I-9 to

establish work authorization status, and

- Proof of identity, and its expiration date, if applicable

11. What about employees who don’t have social

security numbers yet?

E-Verify cannot be used for employees who do not yet have a Social

Security Number (SSN). The I-9 still needs to be completed and

after the Social Security Number is received, the query needs to be

filed with E-Verify. If an employee otherwise meets the

requirements to begin work without the Social Security number, the

employee should be permitted to work until the Social Security

number is received and the employee has gotten a negative

response from DHS on the name check.

12. What happens if E-Verify issues a non-confirmation

finding?

For SSA non-confirmations:

If the employer receives a tentative non-confirmation from SSA, the

employer must print out the notice and provide it to the employee

so the employee can decide whether or not to contest the finding. If

the employer erred in the data input, the employer should attempt

to refile with E-Verify.

The employer must then record the case verification number,

review the data input in the system to make sure there was no

error and find out if the employee will contest.

If the employee will contest, E-Verify will provide the employer with

instructions on referring employees to SSA field offices. The

employer will print out instructions on how to seek correction with

SSA and provide the letter to the employee with instructions that

the matter must be resolved within eight federal government work

days.

After ten federal government work days, the employer will re-query

E-Verify in order to get a confirmation or a final non-confirmation,

unless the SSA instructs otherwise.

For DHS non-confirmations:

If the employer receives a tentative non-confirmation from SSA, the

employer must print out the notice and provide it to the employee

so the employee can decide whether or not to contest the finding. If

the employer erred in the data input, the employer should attempt

to re-file with E-Verify.

If the employer finds a photographic non-match for an employee

who provides a document for which E-Verify has transmitted a

photograph, the employer must print the photographic nonconfirmation

notice and present it to the employee so the employer can decide on

contesting the finding.

If the employee will contest a regular non-confirmation case, the

employer will print out instructions and the employee must phone

DHS within 8 business days to attempt to resolve. In the case of a

photographic non-confirmation, the employer will provide the

employee with a referral letter to DHS. DHS will provide the results

within 10 days of the referral unless it determines it needs more

time.

In photographic non-confirmation cases, the employer will send a

copy of the employee’s Form I-551 permanent residency card or I-

766 employment authorization document by scanning and

uploading the document or mailing a photocopy via express mail (to

be paid by DHS). Where an employer cannot decide if the

photograph matches or not, the employer should forward the

photographic document to DHS for DHS to decide.

13. Can employers selectively choose which employees

are verified in the electronic system?

No. Employers must verify ALL newly hired employees including

both citizens and non-citizens. Employers may not pick and choose

which employees are put through the verification system.

14. Can an employer pre-screen job applicants through

E-Verify?

No. The employer needs to be careful not to pre-screen applicants

and may not delay training or an actual start date based on a

tentative non-confirmation and employee may not face adverse

consequences as a result of the use of E-Verify unless a query

results in a non-confirmation. And an employer cannot accelerate a

start date for a worker because employment authorization is

confirmed. Employers also must always be consistent in the timing

of a query so as to avoid discrimination.

15. Is E-Verify voluntary?

For most employers, E-Verify is voluntary. However, a few states

require E-Verify including Georgia, Colorado and Arizona (as of 1

January 2008). Oklahoma and a few other states require E-Verify

for public sector employers. See question in this document on state

legislative activity.

16. What if a company does not have a computer or

Internet access? Can a third party agent be used to

manage E-Verify filings?

Employers can outsource to a third party agent the ability to submit

employment eligibility verification queries. E-Verify designated

agents must register online and sign a Memorandum of

Understanding and an agent can represent multiple clients. The

employer would still need to separately register and complete a

Memorandum of Understanding and will have a unique client

number. Designated agents can track their clients’ reporting, billing

and compliance.

17. What is an E-Verify Corporate Administrator?

An employer can designate an employee as a Corporate

Administrator who has management authority over an employer’s

hiring sites participating in E-Verify. This person generally would

not conduct the actual inquiries, but after registering, would be able

to register company sites, add and delete users at company sites

and view reports generated by company sites.

18. How does an employer sign up for E-Verify?

To participate in E-Verify, an employment must register online at

the DHS E-Verify page and accept the electronic Memorandum of

Understanding (MOU) that details the responsibilities of the Social

Security Administration, Department of Homeland Security and the

employer.

The registration page for E-Verify is at https://www.visdhs.

com/EmployerRegistration .

19. What are the government’s obligations with regard

to privacy and data security?

In the Memorandum of Understanding, the Social Security

Administration agrees to safeguard the information provided by an

employer and limit access information to individuals responsible for

the verification of Social Security Numbers and for the evaluation of

E-Verify. DHS agrees to safeguard the information provided by the

employer and to limit access to individuals responsible for the

verification of alien employment eligibility and for the evaluation of

E-Verify. Information can only be used to verify the accuracy of

Social Security Numbers and employment eligibility, to enforce the

Immigration and Nationality Act and federal criminal laws and to

ensure accurate wage reports to the Social Security Administration.

20. What are the employer’s obligations under the

Memorandum of Understanding?

The employer agrees to

- display the notices supplied by DHS

- provide DHS with the names and contact information of the

employer representatives responsible for E-Verify

- comply with the E-Verify manual supplied by DHS

- ensure that the employer representative takes the E-Verify

tutorial before attempting to file an E-Verify case

- comply with I-9 rules except that List B documents proving

identity must have a photograph; also, if an employee presents

an I-551 permanent residency card or an I-766 employment

authorization document, the employer must keep a copy of the

document

- notify DHS of any employee the employer continues to employ

after a final nonconfirmation and is liable for fines of between

$500 and $1000 for each failure

- not use E-Verify to engage in pre-employment screening or to

support any unlawful employment practice

- not use E-Verify to selectively check only some employees as

opposed to all new hires

- not use E-Verify to re-verify employees with I-9s requiring

reverification or run existing employees through E-Verify

- to follow the rules with respect to dealing with tentative nonconfirmations

- not to terminate an employee until a final non-confirmation is

received from DHS unless an employer gains actual knowledge

beforehand that an employee is not work eligible

- comply with the INA Section 274B anti-discrimination rules

- safeguard the information provided to and received from E-Verify

under subject of criminal penalties

- permit DHS and SSA to make periodic visits to the employer for

the purpose of reviewing E-Verify records

21. Can a large employer have a controlled roll out of EVerify

instead of including every location? Can a large

employer change the sites participating?

Yes. An employer with multiple sites has flexibility. The employer

can have one of its sites verify new hires at all of its sites or it can

have each site perform its own verification inquiries. Whether one

site is handling queries or multiple sites, each site must sign a

separate Memoranda of Understanding (though DHS has recently

informed the American Immigration Lawyers Association that a

single MOU may be used by employers with more than 1000

employees and multiple sites). Employers with multiple sites should

select “multiple site registration” and give the number of sites per

states it will be verifying. An employer can also choose to only

include some of its sites and can control the roll out of E-Verify

across an organization. However, at each work site, all new hires

for that site must be verified.

22. What are the benefits of participating?

Employers are presumed not to have violated the employer

sanctions rules in INA Section 274A with respect to the hiring of

any individual if it obtains confirmation of the identity and

employment eligibility in compliance with the terms and conditions

of E-Verify. Note that DHS does not consider using E-Verify to

provide a “safe harbor” from worksite enforcement. Some states

such as Tennessee do, however, consider using E-Verify a safe

harbor from violation of the state’s new law which can lead to the

revocation of a business license for employer’s knowingly hiring

unauthorized immigrants.

Using E-Verify will likely result in the elimination of no-match letters

being received by a company. However, there are private

companies that provide similar services, albeit at a cost. DHS also

touts E-Verify as a way to improve the accuracy of wage and tax

reporting, protecting jobs for authorized US workers and helping US

employers maintain a legal workforce.

On April 4, 2008, USCIS released a regulation permitting F-1

students in 12 month practical training programs to extend their

practical training by an additional 17 months if they are in

professions requiring degrees in science, technology, engineering

and math AND their employers use E-Verify. This will provide a very

strong incentive for some employers to use E-Verify given the

shortage of H-1B visas that force many F-1 students to leave the

country upon conclusion of the their training programs. F-1

students will get significant extra time to work and two extra

opportunities to apply for the H-1B lottery as well as the possibility

of moving far enough along in the green card application process to

potentially bypass H-1B processing all together.

23. Are there risks associated with participating?

An employer will have a rebuttable presumption that it knowingly

employs someone ineligible to work if it continues to employ

someone after receiving a final nonconfirmation. If an employer

believe E-Verify is incorrect, the employer will have a strong

incentive to terminate an employee anyway in order to minimize

the risk since an employer acting in good faith on information

received from E-Verify is immunized from civil and criminal liability.

Employers must agree to permit DHS and SSA officials to visit their

work sites to review E-Verify records and other employment records

related to E-Verify. And DHS and SSA may interview an employer’s

authorized agents or designees regarding the employer’s

experience with E-Verify for the purpose of evaluating E-Verify.

Employers who have “buyer’s remorse” and choose to stop using EVerify

must continue using the program for 30 days after giving written notice to

USCIS that it wants to stop using the system.

24. Can an employer verify existing employees as well

as new hires?

No. E-Verify may not be used to go back and check employees

hired before the company signed the MOU or re-verify employees

who have temporary work cards.

25. Can an employer quit using E-Verify?

Yes assuming state law does not require it. The federal government

is considering legislation to require beneficiaries of certain

government agencies’ contracts to use E-Verify, but no such law

has passed yet.

For employers to stop using the system, they must continue using

the system and, per the signed Memorandum of Understanding,

provide 30 days written notice to the government.

26. Is an employer protected from an investigation if

they use E-Verify?

No. Worksite enforcement is still permitted, but an employer using

E-Verify is presumed to not knowingly have hired unauthorized

aliens.

27. What can employees do who feel they have been

subject to discrimination?

Employers may not take any adverse action against an employee

because the employee contests the information mismatch. This

would include firing, suspending, withholding pay or training, or

otherwise infringing on the employee’s employment. Employees

who think they have been subject to discrimination because of their

national origin or citizenship or immigration status with respect to

hiring, firing, recruitment or referral for a fee, through an

employer’s use of E-Verify, or when completing Form I-9, should

call the Department of Justice, Civil Rights Division, Office of

Special Counsel for Immigration Related Unfair Employment

Practices at 1-800-225-7688 for assistance.

28. What states require E-Verify?

Four states have passed legislation mandating E-Verify be used by

employers in the state – Georgia, Colorado, Oklahoma and Arizona.

Idaho, North Carolina, Pennsylvania and Missouri mandate that its

state agencies participate in E-Verify. Texas, Florida, Kentucky,

Alaska, Kansas, South Carolina, Tennessee, Louisiana, Maryland

and California are all considering legislation that would require state

government employers to use the system and Utah, Missouri,

Virginia and Rhode Island are all considering legislation that would

require both public and private sector employers to use E-Verify.

The state of Illinois has passed a law that bans employers from

using the system until DHS documents the accuracy of the system

has increased substantially. DHS is fighting the legislation and

Illinois has agreed not to enforce the law until the litigation is

concluded.

29. How reliable is E-Verify in accurately identifying

unauthorized employees? What other problems are

showing up in the system?

On November 21, 2007, USCIS released a report it commissioned

from Westat, Inc. which it retained to evaluate E-Verify. While the

report found that the number of false positives has decreased (the

numbers have gone from 79% of queries approved to 92%), there

are still numerous problems.

E-Verify does not detect identity theft. In fact, Swift and Company,

the meat processing company that was raided early in 2007 and

had more than 1500 employees arrested, used the E-Verify system.

The employees subject to the raid were accused of identity theft.

The new photo tool in E-Verify is designed to address this problem.

One of the more disturbing findings in the Westat report found that

foreign-born, work-authorized employees are much more likely to

receive a tentative non-confirmation than a US-born employee. In

fact, the foreign-born are thirty times more likely to receive a false

positive non-confirmation than a US-born employee.

The Westat report also reported on employer compliance problems

with E-Verify including a failure to properly train employees using

E-Verify, employers terminating workers improperly and other

employers not promptly firing employees who receive final

nonconfirmation notices. Employers were also found to be

restricting work assignments, delaying training, reducing pay, or

requiring employees to work longer hours during the period when a

non-confirmation is being tested.

The Westat report can be found online at

http://www.uscis.gov/files/article/WebBasicPilotRprtSept2007.pdf.

30. Is there an alternative available to employers that

want to check the authenticity of Social Security

numbers of new hires without using E-Verify?

Yes. The Social Security Administration has a new Social Security

Number Verification Service (SSNVS). The SSNVS is found online

at http://www.ssa.gov/employer/ssnv.htm. Employers and

authorized third parties can verify names and Social Security

numbers match and employers can upload an entire payroll

database to determine if a company’s workforce has matching

numbers.