E-Verify – Your Form I-9 Employment Eligibility Verification Online

E-Verify is a free and voluntary system offered by the Department of Homeland Security that lets you check your employee's employment eligibility.  It doesn't save you the step of completing Form I-9, but it gives you a system to check information and documents given to you by your employees.

By way of background, Employment Eligibility Verification by way of completing Form I-9 is required every time you hire a new employee. 

You have to complete and keep on record a Form I-9 for each employee (U.S. citizens and non-U.S.-citizens).  In completing the form, you have to examine the employees authorization to work in the U.S. and the offered identity documents presented to you.  

Form I-9 does not have to be filed anywhere.  But be careful to keep it in your records for three years after the date of hire or for one year after employment is terminated, whichever is later.  For more information and a very detailed Employer's Handbook on the topic, see here.

Among other exceptions, you do not have to complete Form I-9, if:

  • your employee is hired for casual domestic work in a private home on a sporadic, irregular, or intermittent basis;
  • the person is hired as and independent contractor rather than an employee; or
  • you are getting the employee through an employee leasing or temporary agency. 

As stated above, participation in E-verify is voluntarily for most employers.  However, federal contractors and subcontractors are required to use E-Verify as of September 8, 2009.

When using E-Verify and fulfilling your I-9 obligations, you must be mindful of procedures that were designed to protect employees from unfair employment actions. You cannot discriminate based on whether your employee is a citizen or non citizen, both types have to be checked. You cannot prescreen applicants for employment or ask them to fill out Form I-9, before you made a decision to hire them.  

Don't think you are immune from getting caught, enforcement activity by the U.S. Immigration and Customs Enforcement has been stepped up and it is more likely than before that your business may be hit with an audit.

Outsourcing employment verification does not always save you from trouble, as reported here.

**This post is for informational purposes only and does not constitute legal advice**

About Imke Ratschko

Imke Ratschko is a New York Attorney helping small businesses, business owners and entrepreneurs with all things "Small Business Law," such as litigation, contracts, business owner disputes, shareholder and operating agreements, sale or purchase of a business, investors, and starting a business. You can reach her at 212.253.1027.

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