E-Verify...Who Needs it?

E-Verify is an electronic employment verification program through which employers may confirm the work eligibility of their employees to work in the United States. Although E-Verify started as a voluntary program, except for federal contractors, it has become mandatory for many employers in several states. In 2022 the list expanded once again, requiring some or all employers to use the web-based system and adds to the ever-growing list of state mandates.

Below is a breakdown of the 2023 requirements:

States that require all or most employers to use E-Verify: Alabama, Arizona, Georgia, Mississippi, North Carolina, South Carolina, Tennessee, and Utah.
Public employers and/or contractors with the state: Florida, Indiana, Missouri, Nebraska, Oklahoma, Pennsylvania, and Texas.
Public employers only: Idaho and Virginia.
States with local/municipality E-Verify requirements: Colorado (Denver), Florida (Hernando County, Bonita Springs), Michigan (Ingham County, Macomb County, Oakland County), Missouri (O’Fallon), Nebraska (Fremont), and Washington (Hoquiam, Pierce County, Woodland).
State contractors only: Colorado, Louisiana, and Minnesota.

States can change their policies from year to year and so it is important to stay informed on the regulations for all states in which you do business.

For example, beginning January 1, 2021 every public employer, as well as contractors and subcontractors working on public projects, must enroll in and begin to use E-Verify to confirm the eligibility of all new employees in the state of Florida. Private employers are currently not required to use E-Verify unless they have a contract with a public employer or if they apply to receive taxpayer-funded incentives through the Florida Department of Economic Opportunity.

Additionally, Florida modified the Federal Form I-9 retention rule for private employers if they do not use E-Verify. The federal retention rule requires that Form I-9s, along with copies of documents used to complete them, must be maintained for three years from the date of hire or one year from the date of termination, whichever is later. Private employers who do not use E-Verify must maintain copies of the documents used to complete Form I-9 for three years.

E-Verify requirements differ from state to state, so it is important to know and understand the rules in every state where your company does business.

If your state requires E-Verify, and you do not have an E-Verify account, it is important that you open an E-Verify account as quickly as possible. Do not presume your payroll company is managing E-Verify for your business. Most payroll companies do not perform E-Verify functions for clients and those that do charge an additional fee for the service. If you are unsure, ASK!

The process to set up your company’s E-Verify account is relatively simple and there is a contact number to reach the USCIS for assistance while setting up your E-Verify account.

Enroll in E-Verify: https://www.e-verify.gov/employers/enrolling-in-e-verify

The E-Verify Contact Center is available to assist you with using E-Verify, password resets, assistance with cases and technical support. We can also answer your questions about E-Verify policies and procedures, Form I-9, and employment eligibility.

Contact E-Verify Support:

E-Verify support is available Monday through Friday, from 8 a.m. to 8 p.m. Eastern time, except when the federal government is closed. For users with hearing and speech impairment, TTY phone is available 8:00 a.m. to 8:00 p.m. Eastern time. Employer Contact Information for E-Verify is below:

Phone: 888-464-4218

TTY : 877-875-6028

Email: E-Verify@uscis.dhs.gov

Form I-9 and USCIS Compliance

A Form I-9 is required to be fully and properly completed for every employee who receives compensation, whether monetary or remuneration of goods or services of value such as rent reduction on an apartment as a benefit for an employee; tuition remission or reduction for employees and dependents of schools/colleges/universities; personal use of a company vehicle; etc.

Many people believe a Form I-9 is only needed if the employer participates in the E-Verify program. This belief is inaccurate and can cause literally tens of thousands of dollars in fines for a small business of 50 or under employees and well into the hundreds of thousands in fines for large corporations who fail to properly insure completion of accurate information, retention and storage of Forms I-9.

The United States Citizenship and Immigration Services, (USCIS) implemented the first Form I-9 in 1986 under the Immigration Reform and Control Act to assure that all paid employees are eligible to work in the United States. It is mandatory for all employees and employers to properly complete the appropriate sections of the Form I-9 for each new employment, (and in certain situations, rehire to former employment).

Both the employee and employer are attesting, under penalty of perjury, that the information provided on the Form I-9 is accurate, correct and valid. Additionally, there are specific regulations not only for the proper completion of the Form I-9, but for retention and storage of the same. Forms I-9 are subject at any time to inspection by the Department of Immigration and/or the Department of Homeland Security through a Notice of Inspection, (NOI).

An NOI notifies an employer of an impending inspection of all Forms I-9 for all employees, whether active or terminated, pursuant to retention regulations. Generally, the NOI is served three (3) business days prior to the actual date of inspection. There are no provisions for request of extension or waiver of an NOI.

Incorrect form versions, incomplete information, missing dates/signatures and/or invalid identification used in Section 2 of the Form I-9 are a few of the more prevalent issues among many others reviewed in an inspection can all be cited against an employer and heavy fines incurred.

Self-inspections or audits are one way to review and confirm all Forms I-9 are correct and complete for many businesses. Often, small businesses hire an outside HR service to perform an audit of their records as well. It is a good idea to schedule self-inspections or audits at least once a year, primarily to discover any issues and remedy them as quickly as possible. Also, business may have a secondary internal or external person who is not part of the completion, to review Forms I-9 for new hires during the onboarding process. Both of these are positive ways to close the gaps on potential issues that could be discovered in an inspection by the Department of Immigration or Department of Homeland Security and can ultimately save a company a lot of money in the long run.

Form I-9, Employment Eligibility Verification consists of three sections:

Section One: Employee Information and Attestation
Completed by employees (Instructions for Section 1: https://www.uscis.gov/i-9-central/complete-correct-form-i-9/completing-section-1-employee-information-and-attestation)

Section Two: Employer or Authorized Representative Review and Verification
Completed by employers (Instructions for Section 2: https://www.uscis.gov/i-9-central/complete-correct-form-i-9/completing-section-2-employer-review-and-attestation)

Section Three: Reverification and Rehires
Completed by employers for employees who are rehired or whose employment authorization requires reverification. (Instructions for Section 3: https://www.uscis.gov/i-9-central/complete-correct-form-i-9/completing-section-3-reverification-and-rehires)

A link to the current version of Form I-9 is below:

https://www.uscis.gov/sites/default/files/document/forms/i-9.pdf