E-Verify Frequently Asked Questions (1-7-2008)

1. What is E-Verify?

E-Verify is the Internet-based system administered by U.S. Citizenship and Immigration Services ("USCIS") and the Social Security Administration ("SSA") which is used to confirm the employment eligibility of newly hired employees.

2. How does E-Verify work?

Using an automated system, E-Verify electronically compares employee information contained in an employee's Employment Eligibility Verification DHS Form I-9 ("Form I-9"), and checks it against SSA and Department of Homeland Security ("DHS") databases.  E-Verify confirms the accuracy of Social Security Numbers, and provides confirmation or tentative non-confirmation of employee eligibility to work within three days, but often within minutes.  In the process of verifying work eligibility, the SSA may also check records against DHS's automated system.

3. Which Employees Are Subject to E-Verify?

E-Verify inquiries must be made on all new hires, regardless of national origin, citizenship, or immigration status.

E-Verify verification inquiries must be made within three federal government work days after hiring each new employee.  E-Verify may not be used prior to hire, to pre-screen applicants.  Nor may it be used to re-verify employment authorization.

E-Verify inquiries may not be made on any employees who were hired prior to signing the Memorandum of Understanding ("MOU" - see below).

4. Should I E-Verify Returning Seasonal Employees and Rehired Intermittent Employees?

According to the DHS website, employers may not use E-Verify to (1) prescreen an applicant for employment; (2) make an inquiry on an employee who was hired before the company became a participant in E-Verify; or (3) reverify an employee who has a temporary work authorization.  An employee must be newly hired with a completed Form I-9 before E-Verify may be used to initiate inquiries about his or her employment eligibility.

Federal immigration regulations (8 C.F.R. § 274a.1(c)) define "hire" as "the actual commencement of employment of an employee."  This is a broad definition that does not provide much guidance into whether returning seasonal and intermittent employees should be subjected to E-Verify.

Under those same regulations (8 C.F.R. § 274a.2(c)), if an employee is rehired within three years of the date the form was first completed, a new I-9 is not necessarily required.  If, upon inspection of the Form I-9, the employer determines that the Form I-9 relates to the individual and that the individual is still eligible to work, the same previously-executed Form I-9 is sufficient if the employer updates the Form I-9 to reflect the date of rehire.  If the employer examines the I-9 and determines that the individual's employment authorization has expired, the employer must reverify the I-9 using Section 3 of the form.  Because E-Verify is to be used only after the completion of a new Form I-9, in this case it would be impermissible to use E-Verify with the rehired seasonal or intermittent employee.

If the seasonal or intermittent employee has been gone for more than three years, a new Form I-9 will need to be completed.  In such a case, an E-Verify inquiry must be made following the completion of the new I-9.

5. Who Can Register for E-Verify?

With some exceptions, E-Verify is voluntary for most employers.  One recent development is the exception is for Arizona employers.  As of January 1, 2008, all Arizona employers must participate in the E-Verify program.

6. Is there a fee to use the E-Verify system?

            No.  Neither initial registration nor subsequent use of E-Verify currently requires any fee.

7. How Do I Register for E-Verify?

The official registration website for E-Verify is https://www.vis-dhs.com/EmployerRegistration/StartPage.aspx?JS=YES , which contains additional information and registration instructions.

8. What to Do If E-Verify Returns a Non-confirmation?

If E-Verify indicates that an employee is ineligible (a "tentative non-confirmation"), this should not be treated as an indication that the employee is not work authorized.  In the event of a tentative non-confirmation, record the case verification number and review the submitted employee data to check for any errors.

E-Verify affords an employee the opportunity to contest a tentative non-confirmation.  In the event that E-Verify returns a tentative nonconfirmation, the following steps should be implemented:

Step 1: The tentative non-confirmation, and the right to contest it, must be reported to the employee immediately, to determine whether the employee intends to contest it.

Step 2: If the employee contests the tentative non-confirmation, the employer must provide the employee with a written referral and instructions (provided on the E-Verify website) to visit an SSA office to resolve any discrepancy within 8 federal work days. 

Step 3: Within 10 federal work days of referring the employee to the SSA, the employer must resubmit the E-Verify inquiry to the designated SSA agent to receive confirmation or final non-confirmation.

A copy of each document provided to the employee per Steps 1, 2, and 3 should be preserved.

Prior to a final non-confirmation, no adverse action, including suspension or termination, may be taken against the employee.

9. What Are the Technical Requirements for E-Verify Registration?

E-Verify can be accessed with Internet Explorer versions 5.5 or newer, and Netscape 4.7 and newer, with the exception of Netscape 7.0.  E-Verify is also compatible with Firefox version 2.0.0.1.1 (the latest version as of November 30, 2007).  E-Verify recommends the use of Internet Explorer.  If you encounter technical problems with E-Verify, contact their technical help desk at (800) 741-5023.

10. What Is the Registration Process?

Step 1: At the official E-Verify website, you will be prompted to answer four questions which pertain to what sort of access is being requested.  The first method, the "Employer Access Method," will apply to most employers.  The other methods are for companies which use E-Verify on behalf of other employers (the "Designated Agent Access Method"), larger companies which more complex reporting procedures ("Support Role: Corporate Administrator"), and companies which develop their own customized software to access E-Verify ("Alternative Access Method: Web Services").

Step 2: Users will then be prompted to read through and accept the terms and conditions of the Memorandum of Understanding.  The MOU is essentially a contract between the employer, the SSA, and the DHS, which describes E-Verify and its processes, what the employer can expect from the SSA and the DHS, and the responsibilities of the employer.

Step 3: After reviewing and agreeing to the MOU, the user will be prompted, in a series of subsequent pages, to supply (1) the name and contact information for the employer's agent who will sign the MOU; (2) the name and address for the company; (3) the company's Employer Identification Number; (3) the number of employees; (4) the company's North American Industry Code System code (which can easily be generated on the website if not already known); (5) the state in which hiring sites are located and total number of hiring sites per state; and (6) name and contact information for each user the company will authorize to access E-Verify on its behalf.  Employers with multiple hiring sites may opt to have one site perform the E-Verification queries, in which case only that site need be designated and only one MOU submitted.  If verification queries are performed at more than one site, each verification site will need to be registered and to submit a separate MOU.

Step 4: E-Verify will then send a confirmation e-mail to the e-mail address for the company's agent provided in Step 3.  This should be received within 48 hours, but may take only a few minutes.  This confirmation e-mail will provide a username, temporary password, and a link to the E-Verify entry page.  The user will then access the link and follow the prompts.

Step 5: Once successfully logged in to the E-Verify website, the user will be required to take a tutorial which explains E-Verify's rules and procedures, and then take the E-Verify Mastery Test.  Upon completion of the Mastery Test, the user will then log out of E-Verify.  With the next log in, the user will be able to use E-Verify.

11. What Documents are Used for Reporting Employee Information?

Information supplied to E-Verify is derived from the employee's I-9.  Prior to the use of E-Verify, there must be a completed I-9 for each new hire.

12. How Can I Leave the E-Verify Program?

Termination of participation in E-Verify requires 30 days prior written notice to SSA and USCIS.

Counsel to Management:

The Form I-9 remains the most important part of any worker-eligibility compliance program.  Employers must be certain that each Form I-9 is filled out completely, and that employees are properly trained in I-9 procedures, such as when it is appropriate to update an employee's Form I-9, rather that complete a new one.  Employers using E-Verify must ensure that hiring officers and staff also fully acquaint themselves with E-Verify procedures and requirements by carefully reviewing the E-Verify MOU, taking the E-Verify tutorial, and passing the E-Verify test.

Saqui & Raimondo will continue to issue updates on this developing area of law, and will be providing new handbook policies to reflect these changes.  Additional questions and requests for clarification may be e-mailed to This e-mail address is being protected from spam bots, you need JavaScript enabled to view it .  Anthony P. Raimondo may be reached at our Salinas office at (831) 443-7100, and Michael C. Saqui may be reached at (916) 782-8555.