E-Verify Basics for Employers

E-Verify is the federal online system that compares information from an employee's Form I-9 with records held by the Department of Homeland Security and the Social Security Administration. For many employers it is voluntary. For others, including many federal contractors and employers in states that require it, it is mandatory. Either way, once you enroll, you take on a set of rules that sit on top of your Form I-9 obligations.

This guide covers how enrollment works, when to create cases, how to handle a tentative nonconfirmation (now called a mismatch), and the mistakes that most often get employers into trouble.

E-Verify does not replace Form I-9

Start with the most common misunderstanding. E-Verify is not a substitute for Form I-9. Every employer must still complete Section 1 and Section 2 for every new hire, review original documents (or use the DHS alternative procedure if you qualify), and retain the forms for the required period.

E-Verify builds on that work. The case you create uses information from the completed Form I-9, so an error on the form becomes an error in the case. Clean I-9s make for clean E-Verify cases.

Enrolling in E-Verify

Enrollment happens online through E-Verify's website. During enrollment, the employer signs a Memorandum of Understanding (MOU) with DHS and SSA. The MOU is the rulebook: it spells out what you must do, what you must not do, and how employees must be treated during the process. Read it, keep a copy, and make sure everyone who creates cases understands it.

A few enrollment decisions matter later:

• Hiring sites. You will identify the locations where you hire and verify. Multi-location employers should decide whether to verify centrally or at each site.
• Users. Each person who creates cases needs their own user account and must complete the required tutorial. Do not share logins.
• Access method. Some employers use E-Verify directly; others access it through an employer agent or an electronic I-9 system that connects to E-Verify. The obligations under the MOU apply either way.

After enrolling, you must display the required E-Verify participation and Right to Work notices where applicants and employees can see them, and on your website if you have one.

When to create a case

The basic rule: create an E-Verify case no later than the third business day after the employee starts work for pay, and only after Form I-9 is complete.

Timing mistakes are among the most common E-Verify problems. Watch for these:

• Do not prescreen. You cannot run applicants through E-Verify before a job offer is made and accepted, and you cannot run a case before Form I-9 is completed.
• Verify new hires consistently. Once enrolled, run every new employee at a participating hiring site, not a selected subset. Choosing who gets verified based on citizenship, national origin, or appearance is discrimination.
• Existing employees are generally off limits. Most employers may use E-Verify only for new hires. Federal contractors with the E-Verify clause in their contract have specific rules that may allow or require verifying certain existing employees.
• Late cases need a reason. If a case is created after the deadline, E-Verify asks you to note why. Document the reason honestly.

Understanding case results

Most cases return Employment Authorized quickly. When the information does not match government records right away, you may see other results:

• Tentative nonconfirmation (mismatch). The information did not match DHS or SSA records. This is not a finding that the person is unauthorized. It often comes from name changes, data entry mistakes, or records that were never updated.
• DHS verification in process. DHS needs more time to check its records. No action is needed from the employee at this stage.
• Final nonconfirmation. The employee did not contest a mismatch, or a contested mismatch could not be resolved in favor of employment authorization.
• Close case. Every case must be closed with the correct closure statement, whatever the result.

Handling a mismatch the right way

How you handle a mismatch is where E-Verify compliance is won or lost. The process is set by E-Verify and the MOU, and it protects employees from losing their jobs over record errors.

1. Notify the employee privately and promptly. Give the employee the Further Action Notice and review it with them in a private setting.
2. Let the employee decide. The employee chooses whether to take action to resolve the mismatch. They must indicate their choice on the notice, and both of you sign it.
3. Refer the case if they take action. Refer the case in E-Verify and give the employee the referral date confirmation with instructions. The employee then has eight federal government working days to contact SSA or DHS, as instructed.
4. Do not take adverse action while the case is pending. You may not fire, suspend, delay training, withhold pay, or otherwise treat the employee differently because of a pending mismatch. The employee keeps working normally.
5. Follow the case to its conclusion. Check the case for updates and close it with the correct closure statement once a final result is reached.

If the employee chooses not to take action, or the case ends in a final nonconfirmation, you may terminate employment based on that result. If you continue to employ the person, you must notify E-Verify.

Photo matching and document copies

When an employee presents certain List A documents, such as a U.S. passport, a Permanent Resident Card, or an Employment Authorization Document, E-Verify may display the photo on record so you can compare it with the document. When photo matching applies, keep a copy of the document with the Form I-9.

Separately, E-Verify employers may accept only List B identity documents that contain a photograph. That rule applies to E-Verify participants and is a frequent Section 2 error for employers who are new to the program.

Common E-Verify mistakes to avoid

• Creating cases before Form I-9 is complete, or before the person has accepted an offer.
• Missing the three-business-day deadline without documenting why.
• Verifying only some new hires, or only those who "seem" like they need it.
• Telling an employee to stop working, or cutting hours, while a mismatch is pending.
• Failing to give the Further Action Notice privately, or not reviewing it with the employee.
• Leaving cases open instead of closing them with the correct statement.
• Sharing user accounts or letting untrained staff create cases.

How Clear I-9 helps

Clear I-9 by TRAK brings Form I-9 and E-Verify together in one workflow. Instant E-Verify creates cases from the completed Form I-9, so the data matches and you are not retyping information. Error checks catch Section 1 and Section 2 problems before they turn into case problems, and workflows and tracking keep the three-business-day deadline and open mismatches visible to the people responsible for them. Centralized reporting shows where every case stands across locations, and electronic signatures keep each employee's I-9 and E-Verify history in the same record.

Want E-Verify cases handled on time and by the book? Request a demo of Clear I-9 and we'll walk you through it.

This article is for general information only and is not legal advice. For guidance on your specific situation, consult qualified employment counsel and the official USCIS resources.