It's the employer's responsibility to verify a newly hired employee's eligibility to legally work in the United States. To be eligible, you must be a U.S. citizen, a Legal Permanent Resident (LPR), or in the country on a valid visa. To verify a newly hired employee's eligibility, you must check at least two forms of identification, including a Social Security card, as required by Form I-9 (see "Employment Eligibility Verification" for more details). In addition, the federal government's E-Verify database provides employers with a more convenient way to check an employee's eligibility.
Below is an overview of the E-Verify system, which is required of some employers but optional for others. See the Immigration Law for Employers section to learn more.
The Department of Homeland Security (DHS), in partnership with the Social Security Administration (SSA), maintains a central database of valid Social Security numbers and the names of individuals associated with each. The system, called "E-Verfiy," allows participating employers to verify a newly hired worker's employment eligibility electronically in a matter of seconds.
E-Verify also has a photo-matching feature, which occurs automatically for employees who have presented a passport, Permanent Resident Card ("green card"), or an Employment Authorization Document (Form I-766).
Employers who use E-Verify still are required to complete and file an I-9 for each new employee.
When E-Verify is a Requirement
Certain federal contractors and companies contracting with some state governments are required to verify employment eligibility through E-Verify. For more details on contractor requirements, see the "E-Verify Supplemental Guide for Federal Contractors" (PDF).
Additionally, an increasing number of state legislatures have passed laws requiring public and/or private employers to use E-Verify for all newly hired employees. See "State Immigration Laws" for state-by-state information on E-Verify requirements.
How E-Verify Works
Employers who choose (or are required) to use E-Verify must first enroll with the DHS. During the online enrollment process, you will be asked a series of yes/no questions and provide some information about your company. See the agency's "The Enrollment Process" page for more details and a link to the enrollment website.
Once enrolled, employers may simply log into the E-Verify system using an assigned user ID and password to get started. First-time users will be prompted to take a tutorial before using the system to check the Social Security numbers of new employees.
What to do if E-Verify is Unable to Confirm a Match
If the information provided by the employee matches that in the E-Verify database, the employer receives a "Employment Authorized" response. In some cases, E-Verify returns a "DHS Verification in Process" response, which means a manual review is required.
But if the information does not match, a so-called "tentative nonconfirmation" (TNC) is returned, prompting both the employee and employer to take steps toward resolving the matter. There are some legitimate reasons for a mismatch, including inaccurate government records, so the DHS or the SSA will contact the employee for more information.
Need Legal Help with the Verification Process?
While you won't need an attorney to run eligibility checks on prospective new hires, you may run into certain situations that require specific legal know-how. For instance, there could be a false-positive that needs to be straightened out with DHS or you may be on the receiving end of an employee's legal action. Contact a business and commercial law attorney or immigration law attorney well-versed in business law to get started.