Help Wanted: Common Challenges in Employment Verification Law

Employers run the risk of violating federal employment verification laws and discriminating against employees if they do not understand the employment verification process, two federal officials said March 12.

Form I-9, Employment Eligibility Verification, is the form employers use to verify the identity and employment authorization of employees, said Scott Dittemore, an analyst for US Citizenship and Immigration Services. Completing Form I-9 requires employers to inspect employment authorization documents provided by employees, but employers may not request employees to provide specific documentation.

“Most importantly, just remember that you cannot specify the documents the employee presents,” Dettemore said at PayrollOrg’s Capital Summit. “It is up to them, as long as [the documents] come from the list of acceptable documents.”

The list of acceptable documents found on Form I-9 does not include all of the acceptable documents an employee may provide, added Julia Segal, a special litigation counsel for the Department of Justice. Employers should contact the department or refer to USCIS’s M-274 Handbook for Employers if they have questions.

“The point of the Form I-9 is to ensure that the worker is work authorized,” she said. “Workers don’t have the obligation to prove to their employer what their [citizenship] status is. They merely have an obligation to show sufficient documentation to show that they are authorized to work in the United States.”

When employers inspect documents, they must check to see if the document is original, unexpired, appears genuine, and relates to the individual, Dittemore said. However, some exceptions apply.

“We do not expect everyone to be document experts,” he said. “You’re not going to be able to tell that something is a forgery unless it’s really blatant, and there are some talented [forgers].”

Employers may also remotely examine documents, but special rules apply and employers must be enrolled in E-Verify, he said. E-Verify is a free website for employers to determine the employment eligibility of newly hired employees.

Employers submit Form I-9 information into E-Verify, and the website will provide one of three possible results: employment authorized, tentative nonconfirmation mismatch, or verification in process. Employment authorized means that an employee is authorized to work, and verification in process signals that E-Verify needs more time to determine an employee’s work authorization status, he said. A tentative nonconfirmation mismatch indicates that the information input into the system does not match government database records, but it does not mean that an employee is not authorized to work.

"[A tentative nonconfirmation mismatch] does not mean that an employee is not authorized to work. There are a number of ways that a mismatch can occur. It is always possible that they are not authorized to work, and that’s why you are getting that determination, but it is also possible that you just entered the information incorrectly,” Dittemore said. “Name changes [can also cause a mismatch], like if someone gets married or divorced.”

Special procedures exist for employers and employees when a tentative nonconfirmation mismatch occurs, he added.

Sometimes, recent immigrants do not have a Social Security number to provide to employers, Segal added. Social Security numbers are required to use E-Verify but are not required to complete Form I-9. As long as the immigrants have sufficient documentation to satisfy Form I-9 requirements, they are authorized to work, even if employers cannot use E-Verify to check their employment eligibility.

“E-Verify instructs employers to delay running the E-Verify case until the individual receives their Social [Security number],” she said. “There’s also guidance from the Social Security Administration and the IRS on how to manage payroll for individuals who are still awaiting their Social Security numbers.”

Although completing Form I-9 and using E-Verify can be challenging for employers, a new product, E-Verify+, will be coming out soon to streamline the employment verification process. The product will allow employees to update and share their employment eligibility status with new employers, among other features.