Question:
Can I use E-Verify to re-verify and make sure my existing employees are authorized to work in the United States?

Answer:

E-Verify is an Internet-based system that compares information from an employee’s Form I-9 to data from U.S. Department of Homeland Security (DHS) and Social Security Administration (SSA) records to confirm employment eligibility. Employers are required to verify an applicant’s identity and authorization to work in the United States within three days of the first day of work. E-Verify is a tool used by more than 600,000 employers of all sizes to accomplish this task. While participation in E-Verify is voluntary for most employers, certain states, for example, Arizona and Mississippi, require the use of E-Verify, and E-Verify is mandatory for employers with Federal contracts or subcontracts that contain the Federal Acquisition Regulation (FAR) E-Verify clause.
If an employer does not use E-Verify to initially confirm employment eligibility, under federal law, an employer cannot later use E-Verify to check on existing employees’ employment eligibility, or to re-check their eligibility to work in the United States.
Similarly now, under Assembly Bill (AB) 622, which Governor Brown recently signed into law, after an employer has verified employment status by inspecting documents to establish identity and eligibility to work, it is illegal for the employer to later use E-Verify to check the employment authorization status of an existing employee or a job applicant who has not been offered employment. The purpose of AB 622 is to prevent employment discrimination; it is not to allow employers to hire employees who are not authorized to work in the United States.
AB 622 is effective January 1, 2016 and follows the passage in 2013 of two related bills (AB 263 and Senate Bill (SB) 666) that prohibit employers from verifying an employee’s Social Security number in retaliation for an employee or job applicant exercising his or her rights under the law. As a result of these new laws in California, after initial employment eligibility is established, an employer cannot later use E-Verify to check or re-check the work authorization status or Social Security numbers of existing employees because doing so would be considered discriminatory.
Whether or not they use E-Verify, all employers must do the following when offering employment to job applicants:

  • Inform job applicants that all offers of employment are contingent on verification of the applicant’s right to work in the United States;
  • Require all new employees to complete and sign Federal Form I-9 (the “Employment Eligibility Verification” form) no later than their first day of work;
  • Require job applicants to provide original documents verifying their right to work within three business days of their first day of work.

If an employer’s proper use of E-Verify results in the employer receiving a tentative notice from the SSA or DHS indicating that the employee’s or job applicant’s information did not match federal records, the employer must promptly provide the employee with a copy of the notice regarding the tentative Social Security number mismatch, and the employer must follow very specific procedures for resolving the tentative mismatch. Importantly, an employer who terminates or otherwise discriminates against an employee based only on a notice of tentative mismatch may be found to have violated the law.
Employer information regarding I-9 requirements and E-Verify is available at http://www.uscis.gov/i-9 and http://www.uscis.gov/e-verify/employers.