These is a compilation of questions posed by callers during an April 2008 Citizenship and Immigration Services Ombudsman Community Call-in Teleconference, along with U.S. Citizenship and Immigration Services’ responses.
Q: Has there been a recent change to the E-Verify Memorandum of Understanding (MOU)? There had been mention of an MOU for large employers late last year.
A: There have not been any recent changes to the MOU itself. A new E-Verify policy now allows large employers to sign one MOU for all of their hiring sites instead of having each site register individually. This makes the registration process much easier for large employers as they can register their headquarters and then add hiring sites and generate user names and passwords for their employees on their own and without the assistance of E-Verify personnel by following the instructions in the E-Verify user manual.
Q: What is the retention period (if any) for copies of acceptable documents that are used in the Employment Eligibility Form I-9 process?
A: The Form I-9 process does not require employers to make and retain copies of the documents an employee presents during the I-9 process. However, employers are free to do so under current law. If a company voluntarily makes copies of the List A, List B or List C documents, then they should follow the same retention schedule as the Form I-9. (Employers must retain completed Forms I-9 for three years after the date of hire or one year after the date employment ends, whichever is later.)For employers who choose to use E-Verify, it may be necessary to make photocopies of an employee’s Permanent Resident Card or their Employment Authorization Card if they are presented by an employee for their Form I-9. This is due to the fact that photocopies of these documents may be needed if an employee chooses to contest a finding of a photo non match during the E-Verify photo screening process for these two types of documents.
Q: Why is E-Verify not to be used as a pre-screening tool? What are the consequences of pre-screening?
A: By statute, E-Verify can only be used to verify newly hired employees of a registered E-Verify company. The MOU that employers sign when registering for the program specifically states that E-Verify can’t be used to prescreen potential employees, selectively verify only some employees, or verify current employees of the company. The training program and user manuals specifically state the same restrictions. While many employers have expressed that they would like to use E-Verify pre-hire, only a legislative change to the statute authorizing E-Verify will enable employers to verify the employment eligibility of potential hires. The Employer understands that if the Employer uses E-Verify procedures for any purpose other than as authorized by this MOU, the Employer may be subject to appropriate legal action and the immediate termination of its access to SSA and Department of Homeland Security information through E-Verify pursuant to the MOU they agreed to.
Q: What is the DHS definition of pre-screening?
A: Pre-screening is defined as using E-Verify to determine work authorization of a potential job candidate before offering a position to that individual. The E-Verify program can only be used to verify the employment eligibility of all newly hired employees. The earliest the employer may initiate a query is after an individual accepts an offer of employment and after the employee and employer complete the Form I-9. The employer must initiate the query no later than the end of 3 business days after the new hire’s actual start date. For example, Company X always assigns a start-date to new employees that is 2 weeks after the employee has completed an approved drug test. After the employee has accepted a job with Company X and after the employee and Company X complete the Form I-9, the company can initiate the E-Verify query. However, the company cannot speed up or delay the employee’s start-date based upon the results of the query (unless the program issues a final non-confirmation, in which case the employee should not be further employed). Employers must verify employees in a non-discriminatory manner and may not schedule the timing of queries based upon the new hire’s national origin, citizenship status, race, or other characteristic that is prohibited by U.S. law.
Q: Is it still considered pre-screening to wait until a Tentative Non-confirmation is resolved?
A: As previously stated, the E-Verify program can only be used to verify the employment eligibility of newly hired employees. Under the Memorandum of Understanding that all employers must sign before using E-Verify, the employer is required to not delay the employee’s first day of work, defer scheduled training or to take any other adverse action because of a tentative non-confirmation. Any such actions during the TNC period for an employee violates the anti-discrimination clause in the MOU.
Q: If an employee is rehired by the same company, are they required to fill out a new Form I-9 and verify the employee through E-Verify again?
A: If an employee is re-hired to work for the same E-Verify registered employer, the employer may use that employee’s existing Form I-9 and E-Verify verification record on file. In accordance with Form I-9 retention procedures, employers must retain completed Forms for three (3) years after the date of hire or one (1) year after the date employment ends, whichever is later. If the employee has been previously run through E-Verify, the case resolution number will be attached to their Form I-9 per the requirements of the program. If the employer chooses to treat the rehired employee as a new hire, they should complete a new Form I-9 and verify the employee’s information through E-Verify again. Employers choosing to reinitiate the E-Verify process for re-hired employees must maintain a consistent practice and run all rehired employees through the program.
Q: What is the DHS definition of a new hire?
A: A new hire is an individual (both citizen and non-citizen) who has been offered and accepted employment after November 6, 1986 to work in the United States.
Q: Is there a clear process to follow when an employee receives a TNC?
A: Yes. When an employee receives a Tentative Non-confirmation, the system generates a notice to both the employer and employee about each party’s rights and responsibilities. This notice gives the employee the choice to contest or to not contest the tentative non-confirmation finding. If the employee chooses to not contest the finding, then the employer may terminate the employee. If the employee chooses to contest the tentative non-confirmation, then the employee is given a letter with detailed instructions on how to contact either SSA or DHS to resolve their case within 8 business days.
Q: How do employers who might have remote hiring sites with limited technology meet the three day requirement?
A: Employers are asked to make a good faith effort in meeting the requirement to run an E-Verify query within three days of the date a new employee starts work for pay. Employers should use E-Verify for all new hires and should not preclude anyone from this process simply because they were unable to meet the three day requirement. The E-Verify program asks employers to note on the employee’s I-9 form why there was a delay in initiating an employee’s I-9 query if one were to occur.
Q: What if there is no resolution within the ten day time period?
A: At the end of the ten day time period, if there has not been a resolution, the system will generate one of three responses: A final non-confirmation means that the employee either chose not to contest the finding of an initial mismatch by E-Verify, or was not able to resolve their mismatch with SSA or DHS. For a case in continuance response, DHS or SSA has indicated that it needs additional time to resolve the case. The employer should check the system regularly for a resolution decision to any cases that has been placed in continuance. The employee must be allowed to continue working until a final determination is made. A no show response from E-Verify by DHS indicates that the employee did not contact DHS to resolve his or her case and ten federal government workdays have passed since the date of referral. The No Show response is considered a Final Non-confirmation.
- Final Non-confirmation
- Case in Continuance
- No Show
Q: Why are Designated Agents not required to use Photo Screening Tool?
A: The E-Verify program is currently working to enable the Designated Agent user population to deploy the Photo Screening Tool. All designated agents and their client companies will be using the E-Verify photo screening tool within the next few months.
Q: Do Designated Agents have a simpler verification process due to having a different MOU?
A: Designated agents do not have a simpler verification process due to having a different MOU. Designated Agents have a different MOU because of their different relationship with the E-Verify program. However, their verification process and requirements are the same as a company that is registered as a regular employer, with the exception of the photo screening requirement. Designated Agents will be required to use the photo screening tool in the near future.
Q: Is there an appeals process?
A: E-Verify offers every employee who has received a tentative nonconfirmation the opportunity to contest this finding and correct their records with either SSA or DHS. This is similar to a due process protection. If an employee does contest and is not able to correct his record with additional documentation, he/she will be issued a final nonconfirmation. There is not a formal appeals process for final non-confirmations issued by the E-Verify, though the E-Verify program will delay a final nonconfirmation finding on a case by case basis if employees have experienced delays in receiving needed documentation that will help prove their employment eligibility. Employees who feel that they have been discriminated against or who believe they have received a tentative nonconfirmation in error may contact the Department of Justice’s Office of Special Counsel for Unfair Immigration Related Labor Practices to initiate an investigation.
Q: What is the proper procedure for resolving a case when you have an authorized employee?
A: To resolve a case, perform the following steps:
- Access the Case Details page if it is not already displayed.
- Select Resolve Case.
- In the Enter Case Resolution section, select the appropriate resolve option.
- Resolved Authorized: Select this option when employment is authorized.
- Resolved Unauthorized/Terminated: Select this option when employment is not authorized (SSA FINAL NON-CONFIRMATION, DHS EMPLOYMENT UNAUTHORIZED, or DHS NO SHOW), or when there is an uncontested TNC response and employment is terminated.
- Self Terminated: Select this option if an employee quits or is terminated for reasons unrelated to employment eligibility status while the verification query is in process.
- Invalid Query: Select this option if you discover that you sent a duplicate query, or a query with incorrect data.
- Employee Not Terminated: Select this option to notify DHS that you are not terminating an employee whose employment is not authorized (SSA FINAL NON-CONFIRMATION, DHS EMPLOYMENT UNAUTHORIZED, or DHS NO SHOW), or who is not contesting a TNC response.
- Select Submit Resolve Case. The Enter Case Resolution section changes to the Case Resolution section, and the Print Case Details button returns to the Case Details page.
- Select Print Case Details.
- The Case Details Report appears on another page.
- Print the report by select your browser’s print option.
- Select Back on the browser’s toolbar to return to the Case Details page.
- Select Close to return to the Case Summary List.
- File the report with the employee’s Form I-9.
Q: What is the process for closing a case, or correcting a case when you made an error inputting their information?
A: When an error is made you may resolve the case by following instructions 1-4 above and select 'Invalid Query.'
Q: What is a Final Non-Confirmation (FNC)?
A: If an employee's work eligibility cannot be confirmed, an employer will receive a FNC response from SSA or DHS. An employer receiving an FNC response may terminate the employment of the employee and shall not be civilly or criminally liable for the termination, as long as the employer complied with E-Verify provisions to notify the employee of the tentative non-confirmation finding and action was taken in good faith reliance on the information provided through the E-Verify system. If an employer does not terminate an employee who is the subject of a FNC, that fact must be reported to DHS by selecting the “Employee Not Terminated” resolution option, and a rebuttable presumption is created that the employer is knowingly employing an unauthorized employee.
Q: When is the E-Verify Hotline available?
A: The E-Verify Customer Support Hotline can be reached at 1-888-464-4218 with customer support specialists manning the hotline from 8 a.m. - 5 p.m. Monday-Friday across all three time zones. USCIS also maintains the E-VERIFY@dhs.gov mailbox, where a customer can email the E-Verify program and expect a response within 24 - 48 hours.
Q: Where can employers find FAQs on E-Verify?
A: USCIS has a number of FAQs regarding E-Verify on the E-Verify DHS Website. The website can be found at www.dhs.gov/e-verify. Additionally, E-Verify users have access to the online resources section of the E-Verify system, which contains FAQs, a glossary of terms, user manual, and other helpful links and information on the program and related immigration items.