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Information for Employers About E-Verify

E-Verify is an Internet-based system operated by the USCIS in partnership with the Social Security Administration (“SSA”). Currently, for most employers enrollment in E-Verify is free and voluntary. However, enrollment is required under certain circumstances. For example, all federal contractors and subcontractors must use E-Verify. In addition, if a business in Minnesota has a contract of more than $50,000 with the Executive Branch, that business must be enrolled in E-Verify. Also, for students with STEM (Science, Technology, Engineering and Math) degrees, who wish to extend their Optional Practical Training (“OPT”), their employers must be enrolled in E-Verify. It is anticipated that in the future, enrollment in E-Verify will be required of all employers.

With E-Verify, employers can determine employment eligibility of new hires and the validity of their Social Security Numbers by comparing employee information taken from the Form I-9 against more than 425 million records in the SSA’s database and more than 60 million records in the immigration databases of the Department of Homeland Security (“DHS”). Verification results are usually returned within 3 to 5 seconds.

E-Verify also offers a new Photo Screening Tool, which is the beginning of biometric verification within the E-Verify system. This additional feature helps employers detect identity theft as well as forged immigration documents. With the Photo Screening Tool, an employer can check the photo on the employee’s Employment Authorization Document or Permanent Resident Card (i.e., “green card”) against the 14.8 million images stored in the DHS immigration databases.

Employers who choose to use E-Verify must comply with the following rules:

  • Employers must post a notice informing employees of their use of E-Verify.
  • It must be used for new hires only. It cannot be used to verify the employment eligibility of current employees.
  • It must be used for all new hires regardless of national origin or citizenship status. It may not be used selectively.
  • It must be used only after hire and after completion of the Form I-9. Employers may not pre-screen applicants through E-Verify.

If an employee receives an information mismatch from their Form I-9 and the SSA and the DHS databases, the employer must promptly provide the employee with information about how to challenge the information mismatch, including a written notice generated by E-Verify.

If an employee decides to challenge the information mismatch, the employer must provide the employee with a referral letter issued by E-Verify which contains specific instructions and contact information.

Employers may not take any adverse action against an employee because he/she contests the information mismatch. This includes firing, suspending, withholding pay or training, or otherwise infringing upon his/her employment.

The employee must be given eight federal government work days to contact the appropriate federal agency to contest the information mismatch.

Although participation in the E-Verify program establishes a rebuttable presumption that an employer has not knowingly hired an unauthorized alien, it does not provide a “safe harbor” from worksite enforcement.