What should an employer participating in E-Verify do if it discovers through an internal audit that it did not create E-Verify cases for all employees hired after the employer enrolled in E-Verify?

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E-Verify is a web-based system that allows enrolled employers to confirm the eligibility of their employees to work in the United States. E-Verify employers verify the identity and employment eligibility of newly hired employees by electronically matching information provided by employees on the Form I-9, Employment Eligibility Verification, against records available to the Social Security Administration (SSA) and the Department of Homeland Security (DHS).


E-Verify is a voluntary program. However, employers with federal contracts or subcontracts that contain the Federal Acquisition Regulation (FAR) E-Verify clause are required to enroll in E-Verify as a condition of federal contracting. Employers may also be required to participate in E-Verify if their states have legislation mandating the use of E-Verify, such as a condition of business licensing. Finally, in some instances employers may be required to participate in E-Verify as a result of a legal ruling.


E-Verify, which is available in all 50 states, the District of Columbia, Puerto Rico, Guam, the U.S. Virgin Islands, and Commonwealth of Northern Mariana Islands, is currently the best means available to electronically confirm employment eligibility.


E-Verify is a free, easy-to-use internet-based system. Employers can access E-Verify anytime, anywhere directly from a web browser. Nearly all employees are confirmed as work-authorized instantly or within 24 hours. The system, which has nearly 800,000 enrolled employers, compares information from an employee’s Form I-9 to records available to the Department of Homeland Security and the Social Security Administration to verify authorization to work in the U.S.


On April 18, 2017, President Trump signed the  Buy American and Hire American executive  order to help reduce illegal immigration and preserve jobs for U.S. workers. To support these objectives, USCIS encourages all U.S. employers to verify all new hires through E-Verify.  


Unless an employer is a federal contractor with a federal contract that contains an E-Verify clause, it generally cannot use E-Verify for existing employees. Thus, where the employer was enrolled in E-Verify but did not use the system as a business practice, it should not go back and create cases for any employees hired during the time there was deliberate non-use of E-Verify. However, if an employer learns that it inadvertently failed to create a case in E-Verify, the employer should bring itself into compliance immediately by creating a case for the employee. An employer should consult U.S. Citizenship and Immigration Services (USCIS) for further information at 1-888-464-4218 or by e-mail at [email protected].


E-Verify requires employers to provide employees with an opportunity to contest their TNCs and to allow employees to work–without any delay or adverse action–while they are contesting their TNCs. An employer that discovers that it took adverse action against an employee who contested his or her TNC should consider taking corrective action, such as extending an offer of re-employment to the affected individual, or if corrective action is not possible, documenting why the employer was unable to take corrective action. The failure to provide employees with an opportunity to contest their TNCs and to work while contesting their TNCs violates the E-Verify Memorandum of Understanding and may also constitute discrimination based on citizenship status or national origin in violation of the anti-discrimination provision of the INA, depending on the facts of the case.


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