Great questions! It’s easy to get these confused, when they’re really all part of the same thing.
Employment Eligibility Verification is the Department of Homeland Security (DHS) description for assuring that an employer only hires those individuals with the right to work in the United States. Keep in mind, the right to work is not dependent, per se, on an individual’s citizenship, immigration status, or ethnicity. Employees may be eligible if they have documentation proving their right to work, which is where Form I-9 comes in.
Form I-9 is the primary document filed with DHS to prove that your employee is eligible. It incorporates both a component of identity validation, and right to work validation. It is similar to filling out a tax form, in some ways. It requires you to physically see and copy the supporting documents (chosen from a list) for the employee’s verification of eligibility.
The purpose of E-Verify is to confirm the validity of the identity and right-to-work documents by matching the data provided with databases managed by the Social Security Administration (SSA) and Department of Homeland Security (DHS).
What E-Verify returns, is very simple statuses. E-Verify does NOT provide the employer citizenship status, immigration status, or anything else. It returns basically two choices:
Employment Authorized
No further action is required on your part. The names and numbers matched available records, and the employee is good to go.
DHS or SSA Tentative Nonconfirmation (TNC)
Tentative Nonconfirmation is exactly that. It just means that the names and numbers did NOT match existing records. This is NOT proof that the employee is not eligible to work. The employee has the right to contest this outcome, but first, you should double check your entries. indeed the vast majority of the time this occurs is due to data entry errors when submitting the form.
Maintaining I-9 compliance is comprised of four main components:
1. Know if you must comply, and if you’re required to use E-Verify. Your employment legal counsel can advise you on these matters. Don’t rely on articles on the internet (like this one!) for this very important information. Regulations vary based on your customers (Federal, State, Local government contracts for example) and other state and local requirements. The total number of employees may also make a difference.
2. Complete the Form I-9 correctly. This is the most common compliance mistake. Errors in completing documents can result in fines and penalties and you definitely want to avoid that. Common errors include using an old version of Form I-9, missing information (eg middle name), writing the wrong validated documents in the wrong fields, forgetting to complete a translator or preparer certification, and lots more. Here’s a more complete list of common errors. One of the primary ways to avoid these errors is to use an electronic I-9 solution which validates the form fields along the way, preventing pain later.
What are acceptable documents for Form I-9?
The documents employees must provide generally depend on what they have in order to demonstrate identity and right to work status. Some documents demonstrate one or the other, so the employee may have to provide more than one document. See below for the table of acceptable documents.
Maintaining I-9 compliance is comprised of four main components:
1. Know if you must comply, and if you’re required to use E-Verify. Your employment legal counsel can advise you on these matters. Don’t rely on articles on the internet (like this one!) for this very important information. Regulations vary based on your customers (Federal, State, Local government contracts for example) and other state and local requirements. The total number of employees may also make a difference.
2. Complete the Form I-9 correctly. This is the most common compliance mistake. Errors in completing documents can result in fines and penalties and you definitely want to avoid that. Common errors include using an old version of Form I-9, missing information (eg middle name), writing the wrong validated documents in the wrong fields, forgetting to complete a translator or preparer certification, and lots more. Here’s a more complete list of common errors. One of the primary ways to avoid these errors is to use an electronic I-9 solution which validates the form fields along the way, preventing pain later.
- Employees have the right to know if you participate in E-Verify. Employers must post the E-Verify “Notice of Participation” and the Department of Justice “Right to Work” posters in English and Spanish.
- Employees must be able to know they’ve received a Tentative Nonconfirmation (TNC) and have the ability to contest it.. Your must give the employee a Further Action Notice in English and a translated version, if appropriate, with information on how to contest the TNC. That notice will indicate whether the U.S. Department of Homeland Security (DHS) or the Social Security Administration (SSA) issued the TNC. This notice is generated from E-Verify.
- The employee must be provided the information of HOW to contest a TNC, including the timelines/deadlines to do so. If an employee wishes to contest the TNC, you must provide a Referral Date Confirmation with the deadline and process to visit SSA or call DHS.
- You must allow the employee to start and continue working during the E-Verify process, including during the process of contesting a TNC.
- The employee must be able to present to you the documents of their choice, as long as they meet the requirements of List A or List B and C. It’s not up to your convenience, and you cannot request that they present certain documents.
Generally speaking, if an employer is audited and discrepancies are found, the inspecting officers present the employer with ten days to remediate the issues. Most of the time, if the employer has been following best practices, correcting these issues such as presenting a Form I-9 for an employee is pretty easy.
Things change though if an employee repeatedly or knowingly violates the rules. According to ICE, “Monetary penalties for knowingly hire and continuing to employ violations range from $375 to $16,000 per violation, with repeat offenders receiving penalties, at the higher end. Penalties for substantive violations, which includes failing to produce a Form I-9, range from $110 to $1,100 per violation. In determining penalty amounts, ICE considers five factors: the size of the business, good faith effort to comply, seriousness of violation, whether the violation involved unauthorized workers, and history of previous violations.” Suffice to say, these penalties can really add up, so maintaining Form I-9 compliance is really important to your business!
What are my electronic Form I-9 Options?
Using an electronic Form I-9 solution with E-Verify can simplify compliance in a number of ways.
- Ease the E-Verify registration process. Your solution partner will probably do this for you, and you’ll just electronically sign the MOU.
- Prevent form completion errors. With automatic validation of the data you put in fields, the most common mistakes such as making a typo mistake, or using the wrong document number in the wrong place are completely eliminated.
- Automatically send to E-Verify. One the Form I-9 is completed, the correct data can be sent to E-Verify and returned with the response.
- Automated TNC letters and notifications. This is a biggie of course. Not complying with the TNC process is one of the biggest risks about E-Verify facing employers.
- Storing documents for the correct amount of time, and correctly disposing them when the time is complete.
- Reminders for re-verification of documents at the time of document expiration.
- ICE audit support. Electronic systems make it easier to find the documents and supporting images you need when you are audited.
And Now!
Hopefully you are now well on your way to I-9 Compliance. Please contact our friendly team to learn more about how Pre-Employ’s Electronic I-9 can help you maintain compliance with much less hassle. THANK YOU!
Always start with your employment legal counsel, but USCIS and DHS have provided a lot of documentation to try to make it easier for employers to maintain I-9 compliance.