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E-Verify and Form I-9 Compliance

E-Verify and Form I-9 Compliance: Why Employers Must Follow

While employers are in search of their perspectives candidates, the topmost step of any recruitment drive is inspecting and establishing the eligibility of these candidates as per the federal rules. Complying with E-verify and Form I-9 is very essential for employers.

This brings us to the I-9 form. This is the form which is provided by the United States Citizenship and Immigration Services (USCIS) for identity verification and the authorization of employment in the US. All the employers must see to it that the employees they hire have completed this form. As it is an eligibility form, both US citizens as well as non-US citizens should fill it up.

In-play with this is the E-verify system. The usage of this system is to implement proper immigration law enforcement. It takes in data from the I-9 form of the employee and compares it to the data present in the Social Security Administration (SSA) and/or the Dept. of Homeland Security (DHS). This system helps in proper verification & eligibility of the employees hired and their covered federal contract if any.

E-Verify and Form I-9 Compliance:

Form I-9

The first in line for eligibility check and employee verification is the Form I-9. The employee must fill in the details for section-1 within 2 working days. The employer fills section-2 of this form and it must be done within 3 days or 72 hours of work commencement. This stays true even if the employee has not been on their working hours for some part of the time for the entire time period. The employer can fill-up the form before employment has started if the job offer has been done.

The employee must provide certain records demonstrating character and work qualification for completing the Form I-9. The employee must complete section-1 at the proper time. It is the duty of the employer as well as his liability to see to it that the employee completes this task on time with proper care.

Form I-9 compliance:

It is the sole responsibility of the employer to fill the section-2 of this form. Proper documents must be collected from the employee to complete it. The employer must note down the document numbers and their expiring dates at the marked places. The employer then must confirm that the documents provided are

  1. Genuine
  2. Solely related to the employee
  3. Enough proof to authorize work

In concern with compliance, the employer is allowed to take copies of the documents provided to prove compliance with the system. These copies are made for this sole purpose and not for retaining them with the employer. Also, it must be seen to it that all the policies are followed throughout the process in all situations. Providing these documents alongside the main form will further help the employer prove their compliance throughout the process.

Who is required to fill the I-9 form?

Everyone at all times doesn’t need to fill I-9 form. The who are applicable to fill this form are:

  • New hire
  • Rehired employee
  • Any graduate who receive a stipend

Situations where completing Form I-9 differs.

There are times when a need to change the rules is needed. These situations are as described below.

  1. Reverification

In the event that the employee’s work authorization document has a lapse date, the employer must reverify the employee’s entitlement to work preceding that expiry date. Likewise, when an employment authorization expiration date is given in Section 1, employers are needed to reverify work approval prior to the date appeared.

In this case, the re-verification is completed by going through the work authorization and completing the section-3 in the form. If this update is not made on time, then as per rules, it will be considered as non-compliance to the immigration laws and allowing an immigrant to work without a work permit.

It must be noted that re-verification is not needed in the case of identity documents as per List B, valid or expired US passports, permanent registration cards.

  1. Rehiring

In case of rehiring an employee, there is no need to fill a new Form I-9 if they are rehired within 3 years of completing the earlier I-9 form. In this situation, all that the employer needs to do is to update the earlier form by checking whether the employment eligibility document previously is still valid. If this is confirmed, then all that the employer needs to do is to note the rehire date in section-3 of the form.

If there is a new version of Form I-9 issued, then the employer and the employee must fill in the new form as per specifications.

  1. Third-party interference

Employers can pass on the responsibility to verify the employee’s documents to a third party. But the employer must remember that to check whether proper verification standards are achieved, comes under their liability.

Form I-9 and Record maintenance

Employers must see to it that the completed form I-9 is kept properly as long as the person works for them. On termination, the retention of I-9 forms must be for three years since the hiring date or a year after the termination, whichever comes later.


It is a server-based system under DHS that helps the employers to verify electronically the employment eligibility of the new hires by comparing the existing data of the individual with the SSA and with the DHS.

It is not a compulsion for all employers. The organization with a federal contract comprising of a FAR E-clause must adhere to using E-verify for all their employees including new hires.

The steps included in the E-Verify process are as follows:

  • The organization enters the employee’s data from Form I-9 into E-Verify and presents the data to make a case.
  • E-Verify analyzes the data to records accessible to the Dept. of Homeland Security and the Social Security Administration, inclusive of:
    • S. passport and visa information.
    • Immigration and naturalization records.
    • State-issued driver’s licenses and identity document information.
    • Social Security Administration records.
  • E-Verify, in some cases, shows a photograph for the employer to contrast with the photograph on the employee’s record to guarantee that the document photograph has not been manipulated.
  • E-Verify gives one of the below case results:
Employment Authorized The given information matches the available records with SSA and/or DHS
Verification in Progress Further verification with DHS is needed
Tentative Nonconfirmation (TNC) The data doesn’t match with the available records. More action is needed.
Case in Continuance The employee has contacted the SSA field office or DHS, but more time is needed to determine a final case result.
Close Case and Resubmit The employer needs to close the case and reopen a new one. This might be due to some wrong information entered.
Final Nonconfirmation Employee eligibility cannot be verified even after they visit SSA or DHS.

In the case of TNC response from the E-Verify system, the employer must guide the employee on how to contest the response provided by the system along with the notice generated. If the employee takes on to challenge the TNC, the employer must provide them a referral letter issued by E-verify with all details, instructions, and contact. 8 government working days are provided to the employee to contact the corresponding agency. During the period of TNC, the employer is not allowed to remove or take any negative actions against the concerned individual. This is to be maintained until the final non-confirmation response is received or unless the employee has decided to not challenge the TNC.

[READ: Recruitment Requirements for Employers Under PERM]

E-Verify and I-9 form

There are certain things to be acquainted with regard to these systems. Let’s have a look through some important differences right now with regards to:

Form I-9 E-Verify
This is mandatory for all employees especially new hires. This is voluntary unless the federal contract says otherwise
Doesn’t need a social security number Needs a Social security number
It doesn’t require a photo on identity documents Requires a photo on identity documents
It should be used to reverify expired employment work authorization It should not be used to reverify expired employment work authorization


Though E-verify is said to be voluntary, it is highly recommended that it can be made mandatory with the expanding digital age. This system brings in major ease to quick conformations to the employer regarding the employee’s verification and eligibility as per Form I-9 details. Compliance in the case of E-verify and Form I-9 is very much important as it shows documented proof for all details of the employee. Timely actions need to be done for the special cases of filling form I-9, otherwise, it might be seen as illegal employment for immigrants and may cause serious legal issues.

Neil Thomas

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