Employer Compliance: E-Verify

On June 9, 2008, the White House announced that all federal agencies would begin requiring employers contracting with the federal government to be participants in the E-Verify program. While the order takes effect immediately, it does allow DHS after consulting with the Administrator of General Services, the Administrator of NASA, DOL, DOD, the Administrator for Federal Procurement Policy and other agencies to issue rules setting out how to implement the order. Once the rule is released, the number of employers using the system will likely jump dramatically since entire industries like health care and higher education will be covered.

What is E-Verify?

E-Verify, formerly known at the Basic Pilot Program, is a free Internet-based system that employers use to confirm the legal status of newly hired employees. It is mandated by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA). The system compares SSN data and information in DHS’ immigration databases to the employee’s name and other Form I-9 information to confirm the employee matches. SSA has 425 million numbers in its database and DHS has sixty million records in its system. If an employee’s information does not match up, USCIS will notify the employer of the non-confirmation. The average response time in E-Verify is three to five seconds.

How many employees are typically run through E-Verify in a year?

Right now there are over 33,000 employers using E-Verify. During the most recent fiscal year, nearly two million queries were made in the E-Verify system. That number is expected to increase dramatically as several states are requiring E-Verify be used by the states’ employees. 92% of verification queries are instantly verified. According to DHS, the top industries using E-Verify are food services, drinking establishments, administrative and support personnel, professional and technical services, other information services and clothing and accessories stores.

Who administers E-Verify?

E-Verify is a partnership of DHS and SSA which is administered by USCIS.

How does E-Verify work?

Employers submit information provided on an employee’s Form I-9 in to the E-Verify web site. The E-Verify system will return one of three results:

• “employment authorized”- The employee is employment authorized
• “SSA Tentative Non-Confirmation” – The SSA database is showing the employee’s name and SSN are not matching
• “DHS Verification in Process” – The DHS will respond within 24 hours with either an Employment Authorized or DHS Tentative Non-Confirmation

 
If an employee shows up as “employment authorized” the employer will record the system-generated verification number on the Form I-9.

If a employer gets a “tentative non-confirmation”, the employer must promptly provide the employee with information about how to challenge the information mismatch and the employee can then contest the determination and resolve the mismatch with the SSA or DHS. The employee will have eight days to resolve the issue. The employee may continue to work with the case is being reauthorized.

If the employee does not contest the finding, the determination is considered final and the employer may terminate the employee and resolve the case.

Employers are also required to post a notice in an area visible to prospect employees that the company is an E-Verify participant. And the employer must post an anti-discrimination notice issued by the Office of Special Counsel for Immigration – Related Unfair Employment Practices, Department of Justice (DOJ) in an area visible to prospective employees.

How does E-Verify handle H-1B portability cases?

According to an advisory email provided to the author, E-Verify doesn’t check who the employer sponsor is and the new employer can use the employee’s I-94 information from the previous employer in an H-1B portability situation.

What computer requirements are necessary to use E-Verify?

Users need an Internet-capable Windows-based personal computer and a web browser of Internet Explorer 5.5 or Netscape 4.7 or higher (with the exception of Netscape 7.0).

USCIS warns employers to “white list” the email address [email protected] in their spam filters.

Can a company batchload data to E-Verify?

Yes. DHS has a real-time batch method that requires a company develop an interface between its personal system or electronic Form I-9 system and the E-Verify database. Employers interested in more information on this including design specifications, should call 800-741-5023.

What is the required timetable for using E-Verify?

An employer can complete E-Verify any time after an offer of employment is accepted and after the Form I-9 is completed. This can be before the start date (as long as an employer is not pre-screening applicants), but in no case later than three business days after the new employee’s actual start date. Note that this doesn’t apply in cases where there is no SSN and then the employer should wait until the number is available (see question below regarding employees without SSNs). A query may be submitted before the actual start date, but the employer needs to be careful not to pre-screen applicants and may not delay training or an actual start date based on a tentative non-confirmation and employee may not face adverse consequences as a result of the use of E-Verify unless a query results in a non-confirmation. And an employer cannot accelerate a start date for an employee because employment authorization is confirmed. Employers also must always be consistent in the timing of a query so as to avoid discrimination.

Does E-Verify tell an employer anything about the immigration status of a new hire?

No. The system only verifies an employer’s authorization to work and not immigration status.

What is E-Verify’s photo screening tool?

The E-Verify photo tool was incorporated in to E-Verify in September 2007 and enables employers to match the photo on an employee’s Employment Authorization Document (EAD) or a Permanent Residence Card (“green card”) to the photo that USCIS has on file for that employee. The tool enables employers to detect instances of document fraud.

What information does an employer need to supply for each employee?

After an employee completes an I-9, the employer must submit a query that includes

• The employee’s name and date of birth
• The Social Security Number (SSN)
• The Citizenship status he or she attests to,
• An A number or I-94 number, if applicable,
• The Type of document provided on the Form I-9 to establish work authorization status, and
• Proof of identity, and its expiration date, if applicable

 

What about employees who don’t have SSNs yet?

E-Verify cannot be used for employees who do not yet have an SSN. The I-9 form still needs to be completed and after the SSN is received, the query needs to be filed with E-Verify. If an employee otherwise meets the requirements to begin work without the SSN, the employee should be permitted to work until the SSN is received and the employee has gotten a negative response from DHS on the name check.

What happens if E-Verify issues a non-confirmation finding?

For SSA non-confirmations:

If the employer receives a tentative non-confirmation from SSA, the employer must print out the notice and provide it to the employee so the employee can decide whether or not to contest the finding. If the employer erred in the data input, the employer should attempt to re-file with E-Verify.

The employer must then record the case verification number, review the data input in the system to make sure there was no error and find out if the employee will contest.

If the employee will contest, E-Verify will provide the employer with instructions on referring employees to SSA field offices. The employer will print out instructions on how to seek correction with SSA and provide the letter to the employee with instructions that the matter must be resolved within eight federal government work days.

After ten federal government work days, the employer will re-query E-Verify in order to get a confirmation or a final non-confirmation, unless the SSA instructs otherwise.

For DHS non-confirmations:

If the employer receives a tentative non-confirmation from SSA, the employer must print out the notice and provide it to the employee so the employee can decide whether or not to contest the finding. If the employer erred in the data input, the employer should attempt to re-file with E-Verify.

If the employer finds a photographic non-match for an employee who provides a document for which E-Verify has transmitted a photograph, the employer must print the photographic non-confirmation notice and present it to the employee so the employer can decide on contesting the finding.

If the employee will contest a regular non-confirmation case, the employer will print out instructions and the employee must phone DHS within 8 business days to attempt to resolve. In the case of a photographic non-confirmation, the employer will provide the employee with a referral letter to DHS. DHS will provide the results within 10 days of the referral unless it determines it needs more time.

In photographic non-confirmation cases, the employer will send a copy of the employee’s Form I-551 permanent residency card or I-766 employment authorization document by scanning and uploading the document or mailing a photocopy via express mail (to be paid by DHS). Where an employer cannot decide if the photograph matches or not, the employer should forward the photographic document to DHS for DHS to decide.

Can employers selectively choose which employees are verified in the electronic system?

No. Employers must verify ALL newly hired employees including both citizens and non-citizens. Employers may not pick and choose which employees are put through the verification system.

Can an employer pre-screen job applicants through E-Verify?

No. The employer needs to be careful not to pre-screen applicants and may not delay training or an actual start date based on a tentative non-confirmation and employee may not face adverse consequences as a result of the use of E-Verify unless a query results in a non-confirmation. And an employer cannot accelerate a start date for an employee because employment authorization is confirmed. Employers also must always be consistent in the timing of a query so as to avoid discrimination.

Is E-Verify voluntary?

For most employers, E-Verify is voluntary. However, a few states require E-Verify for all employers. Others limit the requirement to state agencies and employers with government contracts. A full discussion of state laws is included in Chapter 15.

What if a company does not have a computer or Internet access? Can a third party agent be used to manage E-Verify filings? 

Employers can outsource to a third party agent the ability to submit employment eligibility verification queries. E-Verify designated agents must register online and sign a Memorandum of Understanding and an agent can represent multiple clients. The employer would still need to separately register and complete a Memorandum of Understanding and will have a unique client number. Designated agents can track their clients’ reporting, billing and compliance.

What is an E-Verify Corporate Administrator?

An employer can designate an employee as a Corporate Administrator who has management authority over an employer’s hiring sites participating in E-Verify. This person generally would not conduct the actual inquiries, but after registering, would be able to register company sites, add and delete users at company sites and view reports generated by company sites.

How does an employer sign up for E-Verify?

To participate in E-Verify, an employment must register online at the DHS E-Verify page and accept the electronic Memorandum of Understanding (MOU) that details the responsibilities of the Social Security Administration, Department of Homeland Security and the employer.

The registration page for E-Verify is at https://www.vis-dhs.com/EmployerRegistration.

What are the government’s obligations with regard to privacy and data security?

In the Memorandum of Understanding, SSA agrees to safeguard the information provided by an employer and limit access information to individuals responsible for the verification of SSNs and for the evaluation of E-Verify. DHS agrees to safeguard the information provided by the employer and to limit access to individuals responsible for the verification of alien employment eligibility and for the evaluation of E-Verify. Information can only be used to verify the accuracy of SSNs and employment eligibility, to enforce the INA and federal criminal laws and to ensure accurate wage reports to the SSA.

What are the employer’s obligations under the MOU?

The employer agrees to

• display the notices supplied by DHS
• provide DHS with the names and contact information of the employer representatives responsible for E-Verify
• comply with the E-Verify manual supplied by DHS
• ensure that the employer representative takes the E-Verify tutorial before attempting to file an E-Verify case
• comply with I-9 rules except that List B documents proving identity must have a photograph; also, if an employee presents an I-551 permanent residency card or an I-766 employment authorization document, the employer must keep a copy of the document
• notify DHS of any employee the employer continues to employ after a final nonconfirmation and is liable for fines of between $500 and $1000 for each failure
• not use E-Verify to engage in pre-employment screening or to support any unlawful employment practice
• not use E-Verify to selectively check only some employees as opposed to all new hires
• not use E-Verify to re-verify employees with I-9s requiring reverification or run existing employees through E-Verify
• to follow the rules with respect to dealing with tentative non-confirmations
• not to terminate an employee until a final non-confirmation is received from DHS unless an employer gains actual knowledge beforehand that an employee is not work eligible
• comply with the INA Section 274B anti-discrimination rules
• safeguard the information provided to and received from E-Verify under subject of criminal penalties
• permit DHS and SSA to make periodic visits to the employer for the purpose of reviewing E-Verify records

 

Can a large employer have a controlled roll out of E-Verify instead of including every location? Can a large employer change the sites participating?

Yes. An employer with multiple sites has flexibility. The employer can have one of its sites verify new hires at all of its sites or it can have each site perform its own verification inquiries. Whether one site is handling queries or multiple sites, each site must sign a separate Memoranda of Understanding (though DHS has recently informed the American Immigration Lawyers Association that a single MOU may be used by employers with more than 1000 employees and multiple sites). Employers with multiple sites should select “multiple site registration” and give the number of sites per states it will be verifying. An employer can also choose to only include some of its sites and can control the roll out of E-Verify across an organization. However, at each work site, all new hires for that site must be verified.

What are the benefits of participating?

Employers are presumed not to have violated the employer sanctions rules in INA Section 274A with respect to the hiring of any individual if it obtains confirmation of the identity and employment eligibility in compliance with the terms and conditions of E-Verify. Note that DHS does not consider using E-Verify to provide a “safe harbor” from worksite enforcement. Some states such as Tennessee do, however, consider using E-Verify a safe harbor from violation of the state’s new law which can lead to the revocation of a business license for employer’s knowingly hiring unauthorized immigrants.

Using E-Verify will likely result in the elimination of no-match letters being received by a company. However, there are private companies that provide similar services, albeit at a cost. DHS also touts E-Verify as a way to improve the accuracy of wage and tax reporting, protecting jobs for authorized US employees and helping US employers maintain a legal workforce.

Are there risks associated with participating?

An employer will have a rebuttable presumption that it knowingly employs someone ineligible to work if it continues to employ someone after receiving a final nonconfirmation. If an employer believe E-Verify is incorrect, the employer will have a strong incentive to terminate an employee anyway in order to minimize the risk since an employer acting in good faith on information received from E-Verify is immunized from civil and criminal liability.

Employers must agree to permit DHS and SSA officials to visit their work sites to review E-Verify records and other employment records related to E-Verify. And DHS and SSA may interview an employer’s authorized agents or designees regarding the employer’s experience with E-Verify for the purpose of evaluating E-Verify.

Employers who have “buyer’s remorse” and choose to stop using E-Verify must continue using the program for 30 days after giving written notice to USCIS that it wants to stop using the system.

Can an employer verify existing employees as well as new hires?

No. E-Verify may not be used to go back and check employees hired before the company signed the MOU or re-verify employees who have temporary work cards.

Can an employer quit using E-Verify?

Yes, assuming state law does not require it. The federal government is considering legislation to require beneficiaries of certain government agencies’ contracts to use E-Verify, but no such law has passed yet.

For employers to stop using the system, they must continue using the system and, per the signed Memorandum of Understanding, provide 30 days written notice to the government.

Is an employer protected from an investigation if they use E-Verify?

No. Worksite enforcement is still permitted, but an employer using E-Verify is presumed to not knowingly have hired unauthorized aliens.

What can employees do who feel they have been subject to discrimination?

Employers may not take any adverse action against an employee because the employee contests the information mismatch. This would include firing, suspending, withholding pay or training, or otherwise infringing on the employee’s employment. Employees who think they have been subject to discrimination because of their national origin or citizenship or immigration status with respect to hiring, firing, recruitment or referral for a fee, through an employer’s use of E-Verify, or when completing Form I-9, should call OSC at 1-800-225-7688 for assistance.

What states require E-Verify?

A complete list of states that require E-Verify for all or some of a state’s employers can be found at Chapter 15.

How reliable is E-Verify in accurately identifying unauthorized employees? What other problems are showing up in the system?

On November 21, 2007, USCIS released a report it commissioned from Westat, Inc. which it retained to evaluate E-Verify. While the report found that the number of false positives has decreased (the numbers have gone from 79% of queries approved to 92%), there are still numerous problems.

E-Verify does not detect identity theft. In fact, Swift and Company, the meat processing company that was raided early in 2007 and had more than 1500 employees arrested, used the E-Verify system. The employees subject to the raid were accused of identity theft. The new photo tool in E-Verify is designed to address this problem.

One of the more disturbing findings in the Westat report found that foreign-born, work-authorized employees are much more likely to receive a tentative non-confirmation than a US-born employee. In fact, the foreign-born are thirty times more likely to receive a false-positive non-confirmation than a US-born employee.

The Westat report also reported on employer compliance problems with E-Verify including a failure to properly train employees using E-Verify, employers terminating employees improperly and other employers not promptly firing employees who receive final nonconfirmation notices. Employers were also found to be restricting work assignments, delaying training, reducing pay, or requiring employees to work longer hours during the period when a non-confirmation is being tested.

The Westat report can be found online at http://www.uscis.gov/files/article/WebBasicPilotRprtSept2007.pdf.

Is there an alternative available to employers that want to check the authenticity of SSNs of new hires without using E-Verify?

Yes. SSA has a new Social Security Number Verification Service (SSNVS). The SSNVS is found online at http://www.ssa.gov/employer/ssnv.htm. Employers and authorized third parties can verify names and SSNs match and employers can upload an entire payroll database to determine if a company’s workforce has matching numbers.

What is IMAGE?

IMAGE stands for US Immigration and Customs Enforcement’s Mutual Agreement between Government and Employers program. It is a joint government and private sector initiative designed to “combat unlawful employment and reduce vulnerabilities that help illegal aliens gain such employment.” The initiative is basically designed to improve employer self-compliance.

Under the IMAGE program, employers receive education and training from ICE on proper hiring procedures, fraudulent document detection, use of E-Verify and anti-discrimination procedures. To participate in IMAGE, employers must submit to a Form I-9 audit by ICE and verify all of their employees SSNs through the SSNVS.

After completing the program, an employer will be deemed “IMAGE Certified”. ICE believes that this will become an industry standard.

Will participating in IMAGE guarantee that an employer will not be found liable in an enforcement action?

No. But participation in IMAGE will be considered a mitigating factor in the determination of fines should they be levied.

What obligations do IMAGE participants face?

All IMAGE participants must meet the following requirements:

• participate in E-Verify
• establish an internal training program covering Form I-9 compliance, detecting fraudulent
• identity documents and using E-Verify
• ensure that only trained employees complete the Form I-9 and use E-Verify
• establish a secondary review process to ensure that one person cannot subvert the process
• conduct I-9 audits semi-annually using a neutral party
• establish self-reporting procedures to inform ICE of violations or deficiencies
• set protocols for responding to no-match letters
• establish a tip line for employees to report violations or deficiencies for companies with 50 employees or more, designate a compliance officer to ensure employment practices are in accordance with IMAGE guidelines
• annually report to ICE the number of employees removed and denied employment as a result of IMAGE participation, any major organizational changes and any changes in the contact information of the company’s IMAGE liaison to ICE
• report immediately to ICE the discovery or allegations of any criminal violations

 

What is SSNVS?

SSNVS stands for the Social Security Number Verification Service. It was created in 2006 by the Social Security Administration to allow employers to verify SSNs via a web site. It is a free service available to any employer.

SSNVS can only be used by employers and payroll services to verify that a SSN matches a particular name and only for the purpose of completing a W-2 form. SSNVS will not tell you whether an employee is authorized to work in the US.

Employers can verify up to ten names at a time and receive results instantly. They can also upload files with up to 250,000 names and get an a response in one business day.

The Social Security Administration has posted a detailed tutorial on using SSNVS online at http://www.ssa.gov/employer/SSNVS.pdf.

What restrictions are placed on employers seeking to use SSNVS?

• Employers cannot use the system to prescreen applicants.
• Employers cannot use the system by itself to take punitive actions against an employee whose name does not match
• Employers must establish policies that are applied consistently to all employees (including, for example, using the system on all newly hired employees or verifying all employees at an employer)
• Privacy must be protected by ensuring that third party use of SSNVS is limited to organizations that handle annual wage reporting responsibilities under contract to the employer
• SSNVS should not be used by third party companies that conduct identity verification, background checks or non-wage reporting purposes.

 

DHS/Employer E-Verify Memorandum of Understanding

ARTICLE I

PURPOSE AND AUTHORITY

This Memorandum of Understanding (MOU) sets forth the points of agreement between the Social Security Administration (SSA), the Department of Homeland Security (DHS) and ____________________ (Employer) regarding the Employer’s participation in E-Verify. E-Verify is a pilot program in which the employment eligibility of all newly hired employees will be confirmed after the Employment Eligibility Verification Form (Form I-9) has been completed.

Authority for the E-Verify is found in Title IV, Subtitle A, of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. 104-208, 110 Stat. 3009, as amended (8 U.S.C. § 1324a note).

ARTICLE II

FUNCTIONS TO BE PERFORMED

A. RESPONSIBILITIES OF THE SSA

1. Upon completion of the Form I-9 by the employee and the Employer, and provided the Employer complies with the requirements of this MOU, SSA agrees to provide the Employer with available information that allows the Employer to confirm the accuracy of Social Security Numbers provided by all newly hired employees and the employment authorization of U.S. citizens.

2. The SSA agrees to provide to the Employer appropriate assistance with operational problems that may arise during the Employer’s participation in E-Verify. The SSA agrees to provide the Employer with names, titles, addresses, and telephone numbers of SSA representatives to be contacted during E-Verify.

3. The SSA agrees to safeguard the information provided by the Employer through the E-Verify procedures, and to limit access to such information, as is appropriate by law, to individuals responsible for the verification of Social Security Numbers and for evaluation of the E-Verify or such other persons or entities who may be authorized by the SSA as governed by the Privacy Act (5 U.S.C. § 552a), the Social Security Act (42 U.S.C. 1306(a)), and SSA regulations (20 CFR Part 401).

4. SSA agrees to establish a means of automated verification that is designed (in conjunction with the Department of Homeland Security’s automated system if necessary) to provide confirmation or tentative nonconfirmation of US citizens’ employment eligibility and accuracy of SSA records for both citizens and aliens within 3 Federal Government work days of the initial inquiry.

5. SSA agrees to establish a means of secondary verification (including updating SSA records as may be necessary) for employees who contest SSA tentative nonconfirmations that is designed to provide final confirmation or nonconfirmation US citizens’ employment eligibility and accuracy of SSA records for both citizens and aliens within 10 Federal Government work days of the date of referral to SSA, unless SSA determines that more than 10 days may be necessary. In such cases, SSA will provide additional verification instructions.

B. RESPONSIBILITIES OF THE DEPARTMENT OF HOMELAND SECURITY

1. Upon completion of the Form I-9 by the employee and the Employer and completion of SSA verification procedures required prior to initiation of Department of Homeland Security verification procedures by the Employer, the Department of Homeland Security agrees to provide the Employer access to selected data from the Department of Homeland Security’s database to enable the Employer to conduct:

• Automated verification checks on newly hired alien employees by electronic means, and
• Photographic verification checks (when available) on newly hired alien employees.

 
2. The Department of Homeland Security agrees to provide to the Employer appropriate assistance with operational problems that may arise during the Employer’s participation in E-Verify. The Department of Homeland Security agrees to provide the Employer names, titles, addresses, and telephone numbers of Department of Homeland Security representatives to be contacted during E-Verify.

3. The Department of Homeland Security agrees to provide to the Employer a manual containing instructions on E-Verify policies, procedures and requirements for both SSA and Department of Homeland Security, including restrictions on use of E-Verify procedures (the E-Verify Manual). The Department of Homeland Security agrees to provide training materials on E-Verify.

4. The Department of Homeland Security agrees to provide to the Employer a notice, which indicates the Employer’s participation in E-Verify. The Department of Homeland Security also agrees to provide to the Employer anti-discrimination notices issued by the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), Civil Rights Division, and U.S. Department of Justice.

5. The Department of Homeland Security agrees to issue the Employer a user identification number and password that permits the Employer to verify information provided by alien employees with the Department of Homeland Security’s database.

6. The Department of Homeland Security agrees to safeguard the information provided to the Department of Homeland Security by the Employer, and to limit access to such information to individuals responsible for the verification of alien employment eligibility and for evaluation of the E-Verify, or to such other persons or entities as may be authorized by applicable law. Information will be used only to verify the accuracy of Social Security Numbers and employment eligibility, to enforce the INA and federal criminal laws, and to ensure accurate wage reports to the SSA.

7. The Department of Homeland Security agrees to establish a means of automated verification that is designed (in conjunction with SSA verification procedures) to provide confirmation or tentative nonconfirmation of employees’ employment eligibility within 3 Federal Government work days of the initial inquiry.

8. The Department of Homeland Security agrees to establish a means of secondary verification (including updating Department of Homeland Security records as may be necessary) for employees who contest Department of Homeland Security tentative nonconfirmations and photographic non-match tentative nonconfirmations that is designed to provide final confirmation or nonconfirmation of the employees’ employment eligibility within 10 Federal Government work days of the date of referral to the Department of Homeland Security, unless DHS determines that more than 10 days may be necessary. In such cases, the Department of Homeland Security will provide additional verification instructions.

C. RESPONSIBILITIES OF THE EMPLOYER

1. The Employer agrees to display the notices supplied by the Department of Homeland Security in a prominent place that is clearly visible to prospective employees.

2. The Employer agrees to provide to the SSA and the Department of Homeland Security the names, titles, addresses, and telephone numbers of the Employer representatives to be contacted regarding E-Verify.

3. The Employer agrees to become familiar with and comply with the E-Verify Manual.

4. The Employer agrees that any Employer Representative who will perform employment verification queries will complete the E-Verify Tutorial before that individual initiates any queries.

5. The Employer agrees to comply with established Form I-9 procedures, with two exceptions:

• If an employee presents a “List B” identity document, the Employer agrees to only accept “List B” documents that contain a photograph. (List B documents identified in 8 C.F.R. § 274a.2(b)(1)(B)) can be presented during the Form I-9 process to establish identity).
• If an employee presents a DHS Form I-551 (Permanent Resident Card) or Form I-766 (Employment Authorization Document) to complete the Form I-9, the Employer agrees to make a photocopy of the document and to retain the photocopy with the employee’s Form I-9. The employer will use the photocopy to verify the photograph and to assist the Department with its review of photographic non-matches that are contested by employees. Note that employees retain the right to present any List A, or List B and List C, documentation to complete the Form I-9. DHS may in future designate other documents for the photographic screening tool.

 
6. The Employer understands that participation in E-Verify does not exempt the Employer from the responsibility to complete, retain, and make available for inspection Forms I-9 that relate to its employees, or from other requirements of applicable regulations or laws, except for the following modified requirements applicable by reason of the Employer’s participation in E-Verify: (1) identity documents must have photographs, as described in paragraph 5 above; (2) a rebuttable presumption is established that the Employer has not violated section 274A(a)(1)(A) of the Immigration and Nationality Act (INA) with respect to the hiring of any individual if it obtains confirmation of the identity and employment eligibility of the individual in compliance with the terms and conditions of E-Verify ; (3) the Employer must notify the Department of Homeland Security if it continues to employ any employee after receiving a final nonconfirmation, and is subject to a civil money penalty between $500 and $1,000 for each failure to notify the Department of Homeland Security of continued employment following a final nonconfirmation; (4) the Employer is subject to a rebuttable presumption that it has knowingly employed an unauthorized alien in violation of section 274A(a)(1)(A) if the Employer continues to employ any employee after receiving a final nonconfirmation; and (5) no person or entity participating in E-Verify is civilly or criminally liable under any law for any action taken in good faith on information provided through the confirmation system. The Department of Homeland Security reserves the right to conduct Form I-9 compliance inspections during the course of E-Verify, as well as to conduct any other enforcement activity authorized by law.

7. The Employer agrees to initiate E-Verify verification procedures within 3 Employer business days after each employee has been hired (but after both sections 1 and 2 of the Form I-9 have been completed), and to complete as many (but only as many) steps of the E-Verify process as are necessary according to the E-Verify Manual. The Employer is prohibited from initiating verification procedures before the employee has been hired and the Form I-9 completed. If the automated system to be queried is temporarily unavailable, the 3-day time period is extended until it is again operational in order to accommodate the Employer’s attempting, in good faith, to make inquiries during the period of unavailability. In all cases, the Employer must use the SSA verification procedures first, and use the Department of Homeland Security verification procedures and photo screening tool only as directed by the SSA verification response.

8. The Employer agrees not to use E-Verify procedures for pre-employment screening of job applicants, support for any unlawful employment practice, or any other use not authorized by this MOU. The Employer will not verify selectively; it agrees to use the E-Verify procedures for all new hires as long as this MOU is in effect. The Employer agrees not to use E-Verify procedures for re-verification, or for employees hired before the date this MOU is in effect. The Employer understands that if the Employer uses E-Verify procedures for any purpose other than as authorized by this MOU, the Employer may be subject to appropriate legal action and the immediate termination of its access to SSA and Department of Homeland Security information pursuant to this MOU.

9. The Employer agrees to follow appropriate procedures (see Article IIIB below) regarding tentative non-confirmations, including notifying employees of the finding, providing written instructions to employees, allowing employees to contest the finding, and not taking adverse action against employees if they choose to contest the finding. Further, when employees contest a tentative non-confirmation based upon a photographic non-match, the Employer is required to take affirmative steps (see Article IIIB below) to contact the Department of Homeland Security with information necessary to resolve the challenge.

10. The Employer agrees not to take any adverse action against an employee based upon the employee’s employment eligibility status while SSA or the Department of Homeland Security is processing the verification request unless the Employer obtains knowledge (as defined in 8 C.F.R. § 274a.1(l)) that the employee is not work authorized. The Employer understands that an initial inability of the SSA or Department of Homeland Security automated verification to verify work authorization, a tentative nonconfirmation, or the finding of a photo non-match, does not mean, and should not be interpreted as, an indication that the employee is not work authorized. In any of the cases listed above, the employee must be provided the opportunity to contest the finding, and if he or she does so, may not be terminated until secondary verification by SSA or the Department of Homeland Security has been completed to determine the final confirmation or non-confirmation. If the employee does not choose to contest the Employer’s initial finding, then the Employer can find the employee is not work authorized and take the appropriate action.

11. The Employer agrees to comply with section 274B of the INA by not discriminating unlawfully against any individual in hiring, firing, or recruitment practices because of his or her national origin or, in the case of a protected individual as defined in section 274B(a)(3) of the INA, because of his or her citizenship status. The Employer understands that such illegal practices can include discharging or refusing to hire eligible employees because of their foreign appearance or language, and that any violation of the unfair immigration-related employment practices provisions of the INA could subject the Employer to civil penalties pursuant to section 274B of the INA and the termination of its participation in the E-Verify. If the Employer has any questions relating to the anti-discrimination provision, it should contact OSC at 1-800-255-7688 or 1-800-237-2515 (TDD).

12. The Employer agrees to record the case verification number on the employee’s Form I-9 or to print the screen containing the case verification number and attach it to the employee’s Form I-9.

13. The Employer agrees that it will use the information it receives from the SSA or the Department of Homeland Security pursuant to E-Verify and this MOU only to confirm the employment eligibility of newly-hired employees after completion of the Form I-9. The Employer agrees that it will safeguard this information, and means of access to it (such as PINS and passwords) to ensure that it is not used for any other purpose and as necessary to protect its confidentiality, including ensuring that it is not disseminated to any person other than employees of the Employer who need it to perform the Employer’s responsibilities under this MOU.

14. The Employer acknowledges that the information which it receives from SSA is governed by the Privacy Act (5 U.S.C. § 552a(i)(1) and (3)) and the Social Security Act (42 U.S.C. 1306(a)), and that any person who obtains this information under false pretenses or uses it for any purpose other than as provided for in this MOU may be subject to criminal penalties.

15. The Employer agrees to allow the Department of Homeland Security and SSA, or their authorized agents or designees, to make periodic visits to the Employer for the purpose of reviewing E-Verify -related records, i.e., Forms I-9, SSA Transaction Records, and Department of Homeland Security verification records, which were created during the Employer’s participation in the E-Verify Program. In addition, for the purpose of evaluating the E-Verify, the Employer agrees to allow the Department of Homeland Security and SSA or their authorized agents or designees, to interview it regarding its experience with E-Verify, to interview employees hired during E-Verify concerning their experience with the pilot, and to make employment and E-Verify related records available to the Department of Homeland Security and the SSA, or their designated agents or designees.

ARTICLE III

REFERRAL OF INDIVIDUALS TO THE SSA AND THE DEPARTMENT OF HOMELAND SECURITY

A. REFERRAL TO THE SSA

1. If the Employer receives a tentative nonconfirmation issued by SSA, the Employer must print the tentative nonconfirmation notice as directed by the automated system and provide it to the employee so that the employee may determine whether he or she will contest the tentative nonconfirmation.

2. The Employer will refer employees to SSA field offices only as directed by the automated system based on a tentative nonconfirmation, and only after the Employer records the case verification number, reviews the input to detect any transaction errors, and determines that the employee contests the tentative nonconfirmation. The Employer will transmit the Social Security Number to SSA for verification again if this review indicates a need to do so. The Employer will determine whether the employee contests the tentative nonconfirmation as soon as possible after the Employer receives it.

3. If the employee contests an SSA tentative nonconfirmation, the Employer will provide the employee with a referral letter and instruct the employee to visit an SSA office to resolve the discrepancy within 8 Federal Government work days. The Employer will make a second inquiry to the SSA database using E-Verify procedures on the date that is 10 Federal Government work days after the date of the referral in order to obtain confirmation, or final nonconfirmation, unless otherwise instructed by SSA.

4. The Employer agrees not to ask the employee to obtain a printout from the Social Security Number database (the Numident) or other written verification of the Social Security Number from the SSA (other than the Social Security Number Card).

B. REFERRAL TO THE DEPARTMENT OF HOMELAND SECURITY

1. If the Employer receives a tentative nonconfirmation issued by the Department of Homeland Security, the Employer must print the tentative nonconfirmation notice as directed by the automated system and provide it to the employee so that the employee may determine whether he or she will contest the tentative nonconfirmation.

2. If the Employer finds a photographic non-match for an alien who provides a document for which the automated system has transmitted a photograph, the employer must print the photographic non-match tentative non-confirmation notice as directed by the automated system and provide it to the employee so that the employee may determine whether he or she will contest the finding.

3. The Employer agrees to refer individuals to the Department of Homeland Security only when the employee chooses to contest a tentative nonconfirmation received from the Department of Homeland Security automated verification process or when the Employer issues a tentative non-confirmation based upon a photo non-match. The Employer will determine whether the employee contests the tentative nonconfirmation as soon as possible after the Employer receives it.

4. If the employee contests a tentative nonconfirmation issued by the Department of Homeland Security, the Employer will provide the employee with a referral letter and instruct the employee to contact the Department through its toll-free hotline within 8 Federal Government work days.

5. If the employee contests a tentative nonconfirmation based upon a photographic non-match, the Employer will provide the employee with a referral letter to the Department of Homeland Security. The Department of Homeland Security will electronically transmit the result of the referral to the Employer within 10 Federal Government work days of the referral unless it determines that more than 10 days may be necessary.

6. The Employer agrees that if an employee contests a tentative non-confirmation based upon a photograph non-match, the Employer will send a copy of the employee’s Form I-551 or Form I-766 to DHS for review by:

• Scanning and uploading the document, or
• Sending a photocopy of the document by an express mail account (furnished and paid for by DHS).

 
7. The Employer understands that if it cannot determine whether there is a photo match/non-match, the Employer is required to forward the employee’s documentation to DHS by scanning and uploading, or by sending the document as described in the preceding paragraph, and resolving the case as specified by the Immigration Services Verifier at DHS who will determine the photo match or non-match.

ARTICLE IV

SERVICE PROVISIONS

The SSA and the Department of Homeland Security will not charge the Employer for verification services performed under this MOU. The Employer is responsible for providing equipment needed to make inquiries. To access E-Verify, an Employer will need a personal computer with Internet access.

ARTICLE V

PARTIES

This MOU is effective upon the signature of all parties, and shall continue in effect for as long as the SSA and the Department of Homeland Security conduct E-Verify unless modified in writing by the mutual consent of all parties, or terminated by any party upon 30 days prior written notice to the others. Termination by any party shall terminate the MOU as to all parties. The SSA or the Department of Homeland Security may terminate this MOU without prior notice if deemed necessary because of the requirements of law or policy, or upon a determination by SSA or the Department of Homeland Security that there has been a breach of system integrity or security by the Employer, or a failure on the part of the Employer to comply with established procedures or legal requirements. Some or all SSA and Department of Homeland Security responsibilities under this MOU may be performed by contractor(s), and SSA and the Department of Homeland Security may adjust verification responsibilities between each other as they may determine.

Nothing in this MOU is intended, or should be construed, to create any right or benefit, substantive or procedural, enforceable at law by any third party against the United States, its agencies, officers, or employees, or against ____________________ (Employer), its agents, officers, or employees.

Each party shall be solely responsible for defending any claim or action against it arising out of or related to E-Verify or this MOU, whether civil or criminal, and for any liability wherefrom, including (but not limited to) any dispute between the Employer and any other person or entity regarding the applicability of Section 403(d) of IIRIRA to any action taken or allegedly taken by the Employer.

The employer understands that the fact of its participation in E-Verify is not confidential information and may be disclosed as authorized or required by law and Department of Homeland Security or SSA policy, including but not limited to, Congressional oversight, E-Verify publicity and media inquiries, and responses to inquiries under the Freedom of Information Act (FOIA).

The foregoing constitutes the full agreement on this subject between the SSA, the Department of Homeland Security, and the Employer.

The individuals whose signatures appear below represent that they are authorized to enter into this MOU on behalf of the Employer, SSA, and the Department of Homeland Security respectively.

To be accepted as a participant in E-Verify, you should only sign the Employer’s Section of the signature page. If you have any questions, contact E-Verify at 888-464-4218.