I-9 and E-Verify: Knowing the Difference Makes a Big Difference for Employers

October 8, 2014 | By

At a recent presentation on Form I-9 compliance a participant asked: “Isn’t E-Verify just an electronic replacement for the I-9 form?” This a great question and I am glad someone asked it because knowing the answer is critical to compliance with federal employment regulations. The answer is a resounding, “NO!” The E-Verify program does not replace the I-9 and participating in E-Verify does not remove an employer’s obligations to comply with the I-9 process. There remains a fair amount of confusion about the I-9, which has been described by a colleague as “deceptively simple” and indeed it is. Simply recording an employee’s name incorrectly or waiting until the fourth day of hire to complete the form constitute violations and if an employer isn’t careful the potential fines in the event of an audit can be enormous.

This blog post will not go into all of the many areas an employer can err in complying with the requirements for I-9 completion, retention, and re-verification. Rather, this post is meant to educate our readers on the difference between the I-9 and E-Verify.

The I-9 came about as a result of the Immigration Reform and Control Act of 1986, which had a two-fold mandate: to prevent the employment of undocumented immigrants or others not authorized to work in the United States, but also to prevent workplace discrimination based on citizenship or national origin. The solution to both of these problems was the Form I-9. To comply with the law, employers must verify the identity and employment authorization of each person they hire, complete and retain a Form I-9, Employment Eligibility Verification, for each employee, and refrain from discriminating against individuals on the basis of national origin or citizenship. I-9 compliance is mandatory for all employers and significant fines can be incurred in the event of an audit by Immigration and Customs Enforcement (ICE) or the Department of Labor (DOL).

E-Verify is an internet-based system that allows any U.S. employer to electronically verify the employment eligibility of its newly hired employees. E-Verify is a voluntary program for most employers, but mandatory for some, such as employers with federal contracts or subcontracts that contain the Federal Acquisition Regulation (FAR) E-Verify clause. Some states also require E-Verify for some employers. Employers remain fully responsible for complying with I-9 and employers who fail to do so may be subject to penalties. E-Verify works by electronically comparing the information from an employee’s Form I-9 with records available to the Social Security Administration and/or Department of Homeland Security to verify the identity and employment eligibility of each newly hired employee and/or employee assigned to a covered federal contract.

There are some key differences between Form I-9 and the E-Verify program:

  • Most importantly, the I-9 is mandatory for all employers, while E-Verify is voluntary for most businesses, although it is required for federal contractors, and many states also require E-verify for some businesses. Here’s a map to find out about your state: http://www.lawlogix.com/e-verify.
  • The I-9 does not require a social security number (indeed, requiring a potential employee to produce a social security card for I-9 purposes is a substantive violation and could result in significant fines). By contrast, E-Verify requires a social security number.
  • The I-9 does not require a photo on identity documents, whereas E-Verify does.
  • Lastly, the I-9 must be used to re-verify expired employment authorization, whereas E-Verify forbids doing so.

So the question remains: If the I-9 is mandatory and is intended to ensure that employers only hire employees who are authorized to work in the United States, then what is the purpose of E-Verify? Doesn’t it just duplicate labor for already over-burdened HR staff?  

E-Verify does not replace the I-9. Instead, it can be seen as an additional tool to help employers confirm that employees are authorized to work in the U.S. There are several reasons why an employer would participate in E-Verify: 

  • First, it may be a requirement if the employer is a federal contractor or conducts business in a state that requires it.
  • Second, participation makes it possible to hire some foreign students doing extended Optional Practical Training in a STEM (Science, Technology, Engineering, or Math) profession.
  • Third, E-Verify creates a presumption of an employer’s good faith compliance in the event of an I-9 audit.
  • Lastly, many employers, especially those with large payrolls and multiple offices throughout the country, like the ease of using E-Verify and the security it provides in ensuring a legal workforce, especially when used in conjunction with an electronic I-9 system.

It is important to remember, however, that E-Verify is not 100% accurate. Participation, though free of charge, requires careful training and preparation, and not all businesses will find it either efficient or necessary depending on many factors. 

The important take-away from this blog post is simple: I-9 is NOT the same as E-Verify. When in doubt about either program, remember this: I-9 is MANDATORY. For all new hires, the form must be accurately completed within three business days from the date of hire. The form itself and helpful instructions can be found at http://www.uscis.gov/i-9-central. To learn more about E-Verify go to http://www.uscis.gov/e-verify. 

Categorized In: Hiring, Immigration
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