Employment Eligibility Verification

Although the federal government has always required business owners to verify an employee’s eligibility to work in the U.S., the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement have made recent changes to how this is to be accomplished, and have begun strictly enforcing employment eligibility verification.

Employers are required to complete I-9 forms within three days after hiring an employee. The employee fills out basic information such as his or her name, date of birth, address and Social Security number, and then the employer certifies that the employee has presented documentation confirming his or her right to work in the U.S. The documentation is from the lists of acceptable documents on the form.

Fortunately, although the government will now enforce this requirement more stringently, it has also made complying with employment eligibility verification easier on employers. Employers can now store I-9 forms electronically, check the employment eligibility verification forms online, and learn about what to do if the employee’s information does not match the information provided by the government.

Verify Employment Eligibility Online

Employers may voluntarily use the E-Verify system (formerly known as the Basic Pilot Program), accessible through www.uscis.gov, to verify employment eligibility online. Here are the basic steps to get going on E-Verify:

• You must first enroll in the program and sign a Memorandum of Understanding with the Social Security Administration (SSA) and the Department of Homeland Security (DHS).

• Once your new hire has completed his or her I-9, you log on to the secure DHS site given to you when you enrolled in the program. There you can input the employee’s name, date of birth and Social Security number.

• The system will then either immediately report that the employee is authorized, that DHS will work on confirming authorization, or ask the employee to contact either the DHS or SSA to clear up a potential issue.

If a new hire is not authorized, the system issues a “Tentative Nonconfirmation” and the employer must follow up with the new hire to resolve the problem. The employer provides the new hire with a Further Action Notice with information on how to resolve the mismatch and a Referral Date Confirmation with a deadline to contact the DHS or SSA to resolve the mismatch.

Remote Verification Option (Effective August 1, 2023)

There have been changes to the verification process where employers who participate in the E-Verify system and are in good standing may conduct verifications with remote employees. This new Form I-9 process allows an authorized person from the company to conduct live video interactions with employees.

Employers must complete Form I-9 using a version of Form I-9 dated 8/1/2023 or later, and check the ‘alternative procedure’ option for remote verifications. They perform a document inspection by live video with the remote employee to review the acceptable documents. Note: There is a new version with an expiration date 5/31/2027 that must be used after July 31, 2026.

After the employment authorization, the employer then keeps a copy of the completed form and I-9 documentation on file.

You may want to talk to an employment attorney about the correct procedures to verify employment eligibility.

Storing Employment Eligibility Verification I-9 Forms Electronically

Electronic storage of I-9 forms is now explicitly allowed by recent regulations. While the regulations do not set forth a specific manner in which to store these records, they do mandate that whatever electronic storage medium is used:

• Have reasonable safeguards in place to prevent unauthorized access

• Ensure the accuracy and integrity of the records

• Allow the records to be searched

• Allow the records to be reproduced in a hard copy

Dealing with Discrepancies between Employee and Government-Provided Information

There are several reasons for the system to not immediately authorize an employee; here are the most common scenarios that take place:

• If the Social Security number and name match existing records, you will receive a message saying that the employee is authorized to work and you’re done.

• If the Social Security number and name match, but the system cannot verify whether that employee is authorized to work in the U.S., then you will receive a message that says the DHS is working to verify his or her authorization and the DHS will typically provide an answer within one to three days.

• If the DHS cannot confirm that the individual is authorized to work in the U.S., then it will notify you to inform the employee to report directly to the DHS to clear up the issue.

• If the Social Security number and name do not match, then the employee is directed to contact the SSA to clear up the issue.

Most issues will be resolved within a week of submitting an online I-9, but in problematic cases, the employee will have to submit documentation and photographs to establish his or her identity and authorization to work in the U.S. If the employee cannot establish his or her identity and authorization to work in the U.S., then you must terminate his or her employment to avoid liability.

Get Legal Help with Your Employment Eligibility Verification Questions

Employment eligibility verification rules are subject to change and can involve complicated issues for some businesses. Since the federal government holds you and your business responsible for compliance, you’ll want to be sure that the policies and procedures you have in place are effective. Contact a local employment law attorney to help you with this and other compliance issues in order to ensure that your business stays on the right side of the law.