Your Top 7 Questions on E-Verify Answered

E-Verify is well past the pilot stage and here to stay. With more than half a million employer participants nationwide, many are benefiting from the convenience of checking employment eligibility against government records, online. Are you one of them?

We recently held a webinar explaining what E-Verify is and how you can start using it now. Here is a recap of the top 7 questions employers like you had about the E-Verify process.

1. Is email a required field for Form I-9 and E-Verify, and if so, why?

   No. The email field is optional for Form I-9 and the SterlingBackcheck I-9 system does allow a user to proceed with Form I-9 if an email is not available.

   For E-Verify, if an email is provided, the Department of Homeland Security (DHS) may contact the employee if DHS learns of a potential mismatch between the information provided and the information in DHS or Social Security Administration (SSA) records.

   Note: If the employee provided an email address on their Form I-9, it must be entered into E-Verify.

2. Can I conduct my E-Verify directly through E-Verify?

   Yes. An employer can complete E-Verify directly through E-Verify’s website, or they may opt to use an E-Verify Employer Agent (EEA) such as SterlingBackcheck.

3. I received a paper driver’s license (receipt) from my candidate. Will the E-Verify Photo Matching Tool work?

   No. List B Documents, such as a driver’s license, will not activate the Photo Matching Tool in E-Verify.

   However, Photo Matching is activated by List A documents which include:

   1. US Passport or Passport Card
   2. Permanent Resident Card (I-551)
   3. Employment Authorization Document (I-766)

   Per E-Verify, “in cases of a receipt, employers must consider whether or not they can create a case in E-Verify for an employee who has presented an acceptable receipt to complete Form I-9. If the employee presents a receipt showing that he or she applied to replace a document that was lost, stolen or damaged, a case cannot be created in E-Verify. Presenting a receipt in this situation does not complete the Form I-9 process for E-Verify. You must wait until the employee presents the actual document for which the receipt was presented before you can create a case in E-Verify for the employee.”

   Employers may create a case in E-Verify for an employee who presents the following receipts:

   • The arrival portion of Form I-94/I-94A with a temporary I-551 stamp and a photograph of the individual
   • The departure portion of Form I-94/I-94A with a refugee admission stamp

4. How long are the E-Verify documents archived?

   Pursuant to a National Archives and Records Administration (NARA) records retention and disposal schedule (N1-566-08-7), USCIS is required to dispose of E-Verify records 10 years old or older to minimize security and privacy risks associated with U.S. Government retention of Personally Identifiable Information (PII).

5. Can the person continue to work with a Tentative Non Confirmation on their file?

   Yes. An employee should continue to work for the employer if the initial case result from E-Verify is a Tentative Non Confirmation (TNC). A TNC does not necessarily mean the employee is not authorized to work in the United States, and may return due to mismatching information in the SSA or DHS databases. The employer must give the employee an opportunity to contest the TNC result. If the employee does not contest the result, a Final Non Confirmation result will return and the employer may terminate the employee based on E-Verify.

6. Should I run a new E-Verify on any rehires?

   If you rehire a former employee within three years of his or her previous hire date, you may rely on the information on his or her previous Form I-9.

   If you rehire an employee for whom you never created an E-Verify case and the employee’s previous Form I-9 lists an expired identity document (List B), then you must complete a new Form I-9 and create a case for the employee in E-Verify.

   If you rehire an employee for whom you created an E-Verify case and the employee’s previous Form I-9 lists an expired identity document (List B), then you may either:

   • Complete Section 3 of the employee’s previous Form I-9 and not create a new case for the employee in E-Verify
   • Complete a new Form I-9 for the employee and create a new case for the employee in E-Verify

7. I live in a state that requires E-Verify. Do I need to run it on all existing employees?

   No. E-Verify allows participating employers to electronically verify the employment eligibility of only their newly hired employees. However, federal contractors that have been awarded a federal contract on or after September 8, 2009 that contains the Federal Acquisition Regulation (FAR) E-Verify clause may use E-Verify for existing employees. If your company is already enrolled in E-Verify when you are awarded a federal contract with the FAR E-Verify clause, you must update your company’s E-Verify account to reflect your new status to avoid being identified as non-compliant with E-Verify rules.

   E-Verify does not allow employers other than federal contractors with a federal contract that contains the FAR E-Verify clause to verify its existing employees. For more information regarding the FAR E-Verify clause, see the E-Verify Supplemental Guide for Federal Contractors.

Any information provided is not intended to be, and shall not be construed as, legal advice or a legal opinion.

For more tips on best practices for E-Verify check out SterlingBackcheck’s webinar on E-Verify Compliance – you can watch it on-demand from your desktop or mobile device anytime.