Businesses don’t just want to hire the best employees for the job. They also want to guarantee that they’re hiring trustworthy and dependable people who won’t become legal or financial liabilities down the road. However, this can be equally challenging for both small businesses and larger companies. After all, undertaking a full background check can take plenty of time and effort to complete. This could lead to the misspending of vital resources that could have been better allotted to operational, business development, or expansion purposes.
Thankfully, the United States Government provides two ways to help companies verify the employment eligibility of their hires: Form I-9 and E-Verify. These two are commonly confused with each other, but they are actually two separate tools that are provided by different government agencies. Form I-9 is under the jurisdiction of the United States Citizenship and Immigration Services (USCIS), while E-Verify is jointly operated by the Department of Homeland Security (DHS) and the Social Security Administration (SSA).
Both tools provide employers with effective means to confirm the identity and employment authorization of people hired to work in the U.S. However, knowing which one your company should focus on can become confusing—especially if you are not familiar with how the two differ from each other. To help you out, here’s a quick guide on how each of these can impact your efforts at verifying employment eligibility.
Form I-9 Basics
It’s best to begin with the most basic tool that companies use: Form I-9. Also known as the Employment Eligibility Verification Form, it stems from the Immigration Reform and Control Act (IRCA) of 1986, which forbids employers from consciously hiring workers without proper work authorization inside the United States. It’s supplied by the federal government through a downloadable PDF file from the USCIS website and can be printed and filled out by anyone. This should come as no surprise since it’s a mandatory document that the federal government requires most types of wage earners and their employers to complete.
The document’s latest version that was released in November 2016 even includes some useful features that make filling out your Form I-9 easier than before. Most notable among these is the inclusion of drop-down lists and instructions, calendars for filling in dates, and even an option to clear the entire form for starting over. But despite these changes, the most vital fields for filling in has remained mostly the same.
Since one of the Form I-9’s main purposes is to confirm the individual’s identity the following information is required from the employee:
- Complete name (including all other last names used)
- Date of Birth
- S. Social Security Number
- Email Address; and
- Telephone number
Section 1 (the major parts of which were enumerated above) is to be filled out by employees upon hiring, while employers or their authorized representatives must complete Section 2 of the form by the employee’s third day at work. The second section requires the employer to examine documents that establish that identity and employment authorization of the employee. Finally, there is also Section 3, which appears as an addendum to the previous sections, existing specifically for when an employee is going through a rehiring process and or when they need to be re-verified because of an expired grant of employment authorization.
According to USCIS and the Immigration and Customs Enforcement (ICE), individuals who are allowed to work in the country include:
- Citizens of the United States (born in the United States, Puerto Rico, Guam, the U.S. Virgin Islands, and the Commonwealth of the Northern Mariana Islands)
- Noncitizen nationals of the United States (born in the America Samoa and Swains Island)
- Permanent residents; and
- Aliens who are authorized to work
However, certain types of individuals are exempt from completing the Form I-9. These include the following:
- Unpaid workers and volunteers
- Those born on or before November 6, 1986
- Those working overseas
- Domestic workers; and
- Self-employed individuals (unless they’re also employed by their own business, e.g. as a paid officer of a corporation or a partnership)
Once the Form I-9 is completed, it has to be stored by the employer for three years after the date of the employee’s hire or one year after the date of the individual’s employment has ended, whichever is later. It has to be made available for inspection by authorized government officers.
Instead of being a mandatory government form, E-verify is a government-operated internet-based tool that can be used by employers to confirm the employment authorization of potential employees. Its main purpose is to speed up the entire employment eligibility verification process. It does this by using the information on an employee’s Form I-9 and comparing it with existing data from other records held by relevant U.S. government agencies like the Social Security Administration (SSA) and the Department of Homeland Security (DHS).
However, this also means that E-Verify alone can’t fully replace Form I-9. After all, Form I-9 must be accurately completed for E-Verify to work. Indeed, the same rules apply to storing your forms, despite the digitized process. Even if you’ve enrolled in E-Verify, employees’ Form I-9s should still be retained and filed either physically or digitally during your employee’s tenure for up to three years after their first day of hiring or to only one year after the termination of their employment—whichever is later.
In order for an employer to begin using the E-Verify tool, they will be asked by the program to enter the employee’s information as declared on their Form I-9. Submitting the information creates a case, which the program then processes.
If all the inputted information matches the data from DHS and SSA, the case will receive an Employment Authorized result, and the employee is determined to be fully eligible to work in the U.S. However, in the event of a mismatch, E-verify alerts the employer by sending a Tentative Non-confirmation result for the case.
While receiving a Tentative Non-confirmation result may seem discouraging, this doesn’t necessarily mean a new hire is marked for an early end. The employee is still allowed to continue working with the company, but that individual is given eight federal working days to resolve the issue with the agency associated with the mismatch.
Should You Use E-Verify?
It’s best to mention here that unlike the case with Form I-9, not all U.S. states require employers to use E-Verify. Some states only make it mandatory for certain types of businesses or organizations, while other states don’t require its use at all. To avoid inconveniences and penalties, make sure to look up your local state laws. Nevertheless, if you end up going through E-Verify, you’ll find that it has some pretty useful benefits. The most important of which include the following:
- Faster employment eligibility verification.
- Greater protection from liability, since E-Verify users are granted a “rebuttable presumption” that they did not knowingly hire an unauthorized individual.
- Greater peace of mind from having used a more reliable and foolproof system that’s specifically designed to weed out unauthorized applications.
These are just some of the most vital benefits of opting into E-Verify. Another thing to keep in mind is that even though its use isn’t mandatory right now, there are plans for it to be made mandatory nationwide. That said, it might be best to choose to opt in for easier compliance.
Penalties Associated with Employment Eligibility Verification
This is where it’s important to mention that Forms I-9 can be audited by agencies like the Department of Justice, the Department of Labor, or the Immigration and Customs Enforcement under the Department of Homeland Security.
If these agencies discover any paperwork errors or mismatched information in your files, you could be hit by substantive fines. Since it’s interrelated with Form I-9, the same can be said of E-verify. To help you avoid possible problems, here are some of the key infractions and possible penalties that you should be aware of:
- Errors and Omissions. This includes minor mistakes like typographical errors and improper edit annotations to previously accomplished forms. Keep in mind that almost any mistake or missed action in any of Form I-9’s many fields can slow down the verification process. Even a small error can be punishable by a fine.
- Missing Forms. It doesn’t matter if it’s intentional or accidental. Not keeping an employer’s forms or throwing away their form before the required minimum period also warrants a penalty.
- It’s crucial for employers to maintain consistent practices for completing Forms I-9 and E-Verify. Some inconsistencies that could land you in trouble include making documents available for only select employees, not making copies for all documents, and not using E-Verify for all employees.
- Non-Compliance with E-Verify When Required. As mentioned earlier, not all states require the use of E-Verify for processing new hires. Indeed, this can be a point of confusion for some organizations—especially if you’re located in a state that only enforces its use for selected employers. Always stay on top of the local laws to avoid being penalized by government auditors, or consider getting the services of an expert to help you with compliance.
- Unlawful Employment. This is the most obvious violation that applies with employee eligibility verification. It involves willfully employing unauthorized individuals, which can result in serious criminal and civil penalties. According to the USCIS, this includes engaging in a pattern of hiring, recruiting, or referring unauthorized aliens. Penalties can include a steep fine that maxes out at $16,000 per worker for the third offense, along with a possibility of spending up to 6 months in prison.
- On the other hand, it’s possible for unscrupulous employers to misuse Form I-9 or E-Verify for the purpose of discriminating against minorities or disadvantaged individuals. Although fines for first offenses only amount to $375, the penalty can also max out at $16,000 for the third offense per violation.
Summary of Form I-9 and E-Verify Features
In a nutshell, here are some important points to remember about the Form I-9 and E-Verify:
|A form provided by the Federal Government. It is otherwise known as the Employment Eligibility Verification Form.||A government-operated internet-based tool that can be used to verify U.S. employment authorization of individuals. E-Verify compares information from Forms I-9 to data from the Department of Homeland Security and Social Security Administration.|
|Required by law.||Required in some U.S. states for all or selected employers; Not required or forbidden in other states.|
|Downloadable from the United States Citizenship and Immigration Services website.||Employers can enroll in E-Verify through the United States Citizenship and Immigration Services website.|
|Filled out by both employees and employers (or their authorized representatives).||Filled out by employers (or their authorized representatives).|
|Required by law to be securely stored by the employer for 3 years after the date of the employee’s hire or 1 year after the date of the individual’s employment has ended, whichever is later.||Submitted by employer electronically.|
|Does not need a Social Security Number.||Needs a Social Security Number.|
|Must be used to re-verify employees with expired employment authorization.||May not be used for the reverification of employees with expired employment authorization.|
|Non-compliance is penalized.||Non-compliance is also penalized, depending on location.|
A Common Theme: Ensuring a Legal Workforce
In spite of them being different, Form I-9 and E-Verify both work towards the same goal: ensuring that businesses in the United States rely on a legal and authorized workforce. Unfortunately, choosing between one or the other isn’t really possible for some employers in some U.S. states. However, if you’re operating out of a state that doesn’t require the use of E-Verify, it’s still arguably best to opt in and take advantage of this fast and reliable employment eligibility verification system.
Even if you’ve had the broad strokes of the processes figured out, there are still other details that could negatively impact the entire process. If you’re in charge of a bigger company, the increased amount of manpower and paperwork could be challenging to handle. This could lead to costly fines due to inaccurate information or even legal issues from troublesome hires.
The experts at Emptech know how to handle all the details regarding your I-9 processing. Allow their administration platform, Optyma, to provide you with the efficiency, consistency, and control that you need to ensure frictionless processing of all Forms I-9. With the platform’s integrated E-Verify functionality, it’s even easier to determine the identity and U.S. employment authorization of prospective employees.
To learn more about Emptech’s I-9/E-Verify complete solution, you can get in touch with us by calling 888.453.4725 or by sending us an email at firstname.lastname@example.org.