By Helen L. Konrad, Esq., McCandlish Holton PC
E-Verify is an internet-based employment verification system that has been around for decades. It began as a voluntary program to supplement the Form I-9 process that requires that all new hires present a document or document(s) that evidence both identity and authorization to work. It then became mandatory for federal contractors and subcontractors, and many states also passed laws making it mandatory to enroll. The process does not replace the Form I-9. Rather, the system takes the information from the I-9 and compares it to both the Social Security Administration and the Department of Homeland Security database to confirm the accuracy of the information. If it is consistent with both databases, an “Employment Authorized” result is issued. If there are inconsistencies, a “Tentative Non-Confirmation” is issued, requiring the employer to have to engage further with the employee and walk through steps about whether they intend to contest the finding or not. If they don’t contest, the employee is terminated. If they do contest, the employer must provide the employee with instructions on how to resolve the issue. Then the employer waits for the final decision from E-Verify that the employee is indeed “Employment Authorized.” If the discrepancy cannot be resolved, E-Verify will issue a “Final Non-Confirmation” and the employee must be terminated. The employer is subject to significant fines for continuing to employ employees after receiving a Final Non-Confirmation.
Enter E-Verify+. This is a brand new program that was run in pilot for about a year and was rolled out more formally to all employers on Sept. 9, 2024. The goal of E-Verify+ is to (1) shift the burden of validating the employee’s authorization to work from the employer to the employee; (2) do so within an electronic I-9 tool embedded within the E-Verify system; and (3) once an employee has had his or her employment authorization validated in E-Verify+, the employee would not have to keep redoing the E-Verify process at each employer (but would still need to do a new I-9 with each new employer). DHS has made it very easy to enroll by having a banner on the home page encouraging employers to convert regular enrollment to E-Verify+. There are already over 1,100 employers in E-Verify+ and DHS says it has received 1,000 calls about enrolling. Response has been overwhelmingly positive.
There are certainly many positives to this product; anything that streamlines the I-9 process is an improvement with significant administrative cost and time savings for staffing companies. There are definitely still pain points, however, with an electronic system that is not yet fully developed for the many scenarios that appear in I-9 processing. There is not currently a way to complete a DHS electronic I-9 if the following scenarios appear:
- Employee presents a receipt for replacement of a lost, stolen, or damaged document
- Employee does not yet have a Social Security Number
- Employee needs to use a preparer/translation
- Employee needs to “re-verify” expiring temporary employment authorization in Supplement B
- Federal government is shut down
DHS guidance is that the employer then must print the I-9 and complete it manually and save the original. That is effectively reverting to a paper process, which is not a good solution given that many private I-9 vendors have built-in solutions for all of these scenarios. DHS has also been silent on exactly how an employer could avoid running E-Verify on a new hire that had previously validated employment authorization through E-Verify+.
Perhaps the biggest concern is that DHS has not provided clear guidance on how these electronic I-9s would be stored and accessed in the event of a future I-9 audit. Currently, DHS guidance is that the employer should be downloading each I-9 and saving it as it is completed. The agency has not made clear, however, how long that I-9 would remain available for view and download. In theory, that potentially means that if the employer does not download immediately, they might not have access to it in the future, in the event of an audit. No Form I-9 is the most serious of offenses in I-9 investigations and subjects the employer to the highest fines. Storage and retention is not the only area of exposure for employers. There has yet to be an audit trail of an Electronic I-9 created through this system. Further, Immigration and Customs Enforcement, responsible for I-9 enforcement, has expressly stated that it has not reviewed the E-Verify+ audit trail and has not blessed it as compliant. This lack of clear guidance leaves participating employers vulnerable to very significant fines in the event of an audit.
In short, there is plenty to be excited about, but it might be premature to jump on board just yet until these issues are ironed out.
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