What Problems Are Employers Having With E-Verify?
E-Verify has gone through a protracted development process since it was first introduced as a pilot program in 1997. The promise of E-Verify is that it can detect unauthorized workers before a company exposes itself to liability and legal ramifications. It’s a somewhat controversial program, but it’s still being adopted by employers at a rapid rate. More than 20 states mandate it for at least some of their employers, and several require all employers to use the system. Experts believe that it is only a matter of time before it is mandated by the federal government, so it’s wise for employers to get accustomed with E-Verify.
Although E-Verify has improved markedly in the past couple decades, there are still several quirks that can make it unintuitive for some users. These quirks may lead an employer into making a mistake with their E-Verify case, and that can have serious consequences if E-Verify is mandated. Fortunately, these issues can be mitigated with the help of a work authorization expert or software that is designed to catch potential errors before they become a major problem.
And what errors and quirks should employers be concerned about when using E-Verify?
- An I-9 error is discovered after the E-Verify case is opened – E-verify draws info from the I-9 form, which means any errors on the I-9 form will inevitably result in an error on an E-Verify case. It’s important to take action on both the I-9 form and through E-Verify, in order to remain compliant with I-9 law.Correcting the form error is easy enough. If the error is on Section 1, then the employee will need to make the fix. The employer is responsible for any corrections on Section 2 or 3. To make the correction, draw a line through any incorrect information, enter the correct information and initial and date the correction. This will demonstrate to Immigration and Customs Enforcement, or ICE, that the company is acting in good faith to maintain compliance.The E-Verify case will need to be addressed too, even if the I-9 correction has been made. To do so, first close the E-Verify case and confirm that the case is invalid because it contains incorrect data. This will not result in adverse consequences for the employer, so don’t worry about selecting it. Once the case is closed and the I-9 corrections are made, return to E-Verify and choose “Resubmit Case.” If the case was never opened in the first place, the “Initiate Verification” option can be chosen instead.
- When to close an E-Verify case – An extremely frequent issue that employers stumble into is leaving a case open following verification or non-confirmation. It may seem like the end of the road when either notification is returned, but it’s important to close the case. Failing to do so will expose the employer to potential penalties, if the program is mandatory.There are several situations when it is necessary to close an E-Verify case. If the employee is confirmed to be authorized, the case can be closed right away. If a Tentative Non-Confirmation, or TNC, is returned instead, then the employer will have to respond as the case develops further.Once a TNC is returned, there are several situations that effectively bring an end to the E-Verify case, and therefore the case should be closed. If the employee decides not to contest the TNC or fails to contact the Department of Homeland Security, or DHS, within eight federal government working days, the result is a Final Non-Confirmation. And, of course, the DHS may return a Final Non-Confirmation if it cannot match the employee’s records with what’s on file at the DHS or Social Security Administration’s databases.
All three of these situations require the employer to close the case. Finally, the case will also need to be closed if the employee quits or is terminated while the E-Verify case is open.
If the case is closed following non-confirmation, the employer has the right to allow the employee to continue working. The employer must inform DHS within 72 hours whether it intends to do so or not. Clearly, it is a major risk to employ someone who is unauthorized, and choosing to do so after informing the DHS will be interpreted as the employer willfully doing so. That may result in heavy fines and potential criminal liability if the company is investigated. - Sending in a photo for matching purposes – A U.S. Passport, Employment Authorization Document or Permanent Resident Card will come with a photo. E-Verify will bring up any photo it has on file of the employee so that it can be examined alongside the provided identification.Getting a high quality photo through E-Verify, though, leaves a bit of guesswork on the employer’s part. This is something that is best handled through a work authorization expert, as they will know, at a glance if a photo will work or not. The best approach is to scan the document in, as this will generate excellent photo quality. If a scanner is not available, using a cell phone to take the picture may be sufficient. Faxing the document will rarely work, as the image quality will be poor. And sending in the photo via snail mail is untenable, as tight deadlines preclude it.
Those are only a few of the most pressing issues for employers using E-Verify. Like with any piece of software, it can be finicky at times, and inscrutable at others. This is why so many employers are making the shift to I-9 and E-Verify compliance software, as they can help avoid many of the issues and pitfalls employers face with I-9 compliance.