Although the federal government has always required business owners to verify an employee’s eligibility to work in the U.S., the Department of Homeland Security has made recent changes to how this is to be accomplished, and has started to strictly enforce employment eligibility verification.
Employers must complete the forms I-9 within three days after hiring an employee. The employee fills in basic information such as their name, date of birth, address, and Social Security number, and then the employer certifies that the employee has submitted documentation confirming their right to work in the United States.
Fortunately, although the government will now enforce this requirement more strictly, it has also made complying with the employment eligibility verification easier for employers. Employers can now store I-9 forms electronically, review employment eligibility verification forms online, and learn what to do if the employee’s information does not match the information provided by the government.
Electronic Storage of Form I-9 Employment Eligibility Verification
Electronic storage of I-9 forms is now explicitly allowed by recent regulations. Although the regulations do not establish a specific way to store these records, they do require that any electronic storage medium be used:
- Have reasonable safeguards in place to prevent unauthorized access
- Ensuring the accuracy and integrity of records
- Allow search of records
- Allow records to be reproduced on paper
Verify Employment Eligibility Online
Employers can voluntarily use the E-Verify system (formerly known as the Basic Pilot Program), accessible through www.uscis.gov, to verify employment eligibility online. Here are the basic steps to get started with E-Verify:
- You must first enroll in the program and sign a Memorandum of Understanding with the Social Security Administration (SSA) and the Department of Homeland Security (DHS).
- Once your new hire has completed their I-9, you log into the DHS secure site that was given to you when you enrolled in the program. There you can enter the employee’s name, date of birth, and social security number.
- The system will immediately report that the employee is authorized, that DHS will work to confirm authorization, or ask the employee to contact DHS or SSA to resolve a potential issue.
If the employee is referred to DHS or SSA, those agencies will contact the employer within ten days to confirm whether or not the employee has been authorized, or if further action is required.
Treatment of discrepancies between information provided by employees and the government
There are several reasons why the system does not immediately authorize an employee; here are the most common scenarios that take place:
- If the social security number and name match existing records, you will receive a message saying that the employee is authorized to work and that you are done.
- If the social security number and name match, but the system cannot verify if that employee is authorized to work in the United States, then you will receive a message saying that DHS is working to verify their authorization and that DHS typically will give you an answer within one to three days.
- If DHS cannot confirm that the person is authorized to work in the US, then it will notify the employee to report directly to DHS to resolve the issue.
- If the social security number and name do not match, then the employee is directed to contact SSA to clarify the matter.
Most issues will be resolved within a week after filing an I-9 form online, but in problematic cases, the employee will have to submit documentation and photographs to establish their identity and authorization to work in the United States. If the employee cannot establish your identity and authorization to work in the United States, then you must terminate your employment to avoid liability.
Advice:
The employment eligibility verification rules are subject to change and may involve complicated matters for some businesses. Since the federal government holds you and your business accountable for compliance, you want to make sure the policies and procedures it has in place are effective. Our recommendation is to contact a local attorney to find out how they can assist you with this and other compliance matters to ensure that your business remains on the correct side of the law.