E-Verify is an online query system which allows employers to submit I-9 information received from a new hire to verify the accuracy of the documents by comparing them with available records from the U.S. Department of Homeland Security (“DHS”) and Social Security Administration (“SSA”). It is however important to keep in mind that an employer’s enrollment in E-Verify does not replace the employer’s obligation to complete Form I-9 for every new hire. E-Verify is simply a supplement to the I-9 process, not a replacement.
First enacted by Congress in 1997 as a pilot program, E-Verify was intended to facilitate compliance with U.S. immigration laws by streamlining and standardizing document verification methods. In 2007, the program was expanded and made mandatory for federal contractors. Several years later, DHS made it mandatory for employers of STEM OPT workers. Since then, several states have mandated that it be used for all new hires by employers operating in their state (e.g., Alabama, Arizona, Florida, etc.).
1. The Benefits Of Using E-Verify
• E-Verify applies to foreign students educated in the U.S.: Allows employers to hire workers on STEM Optional Practical Training (“OPT”) who were foreign students educated in the U.S.
• E-Verify applies to contractors: Allows a company to be a federal contractor or sub-contractor, and in some cases a state contractor.
• E-Verify is generally fast: 98% of all initial submissions are approved in minutes. Of the remaining 2% that receive tentative non confirmations, the majority are not work authorized and receive final non-confirmation findings.
2. The Drawbacks Of Using E-Verify
• Cannot detect stolen identities: It has recently come to light that E-Verify does a poor job detecting stolen identities. For example, an employer can have a new hire that is not work authorized but is using the name and social security number of a U.S. citizen in another state. If the new hire presents a driver’s license with the stolen name but with the new hire’s own photo, and a social security card with the stolen number, E-Verify will often approve the documents. Since E-Verify does not have state driver’s license photographs in their database, E-Verify is unable to provide a thorough and entirely accurate photo match, thus leaving an employer open to a potential false-positive of a new-hire authorization.
• ICE I-9 audits: Recently as part of the Trump Administration’s uptick in immigration enforcement, during ICE raids, employers who regularly use E-Verify have been surprised to find out that during the ICE audit, ICE has determined that a large number of employees are not work authorized. Moreover, an employer’s use of E-Verify generally does not impact ICE’s decision to conduct I-9 audits. Additionally, some critics of the Administration’s current policies have raised concern that E-Verify creates a significant amount of digital data for U.S. Citizenship and Immigration Services (“USCIS”) which allows ICE to data mine and target companies for I-9 audits.
• Conclusion: Unless mandated by state or federal law (as in the case of federal contractors), employers should seriously weigh the pros and cons of enrolling in the current version of E-Verify. To the extent USCIS improves the database in the future to better flag stolen identifies, we anticipate that more employers will make use of the program, and more states (and possibly the federal government) will require widespread adoption.
3. Checklist For Employers Using E-Verify
1. The employer enrolls if they have not done so already.
2. The employer adds any worksites to the account as needed.
3. The HR representative completes an on-line tutorial with E-Verify on the USCIS website, unless they have previously completed the tutorial.
4. The new hire completes Section 1 of the I-9 by the first day of hire.
5. The employer completes Section 2 of the I-9 by the fourth day of hire — the so-called “Monday-Thursday rule.”
6. 1099 contractors are not employees and not required to complete and I-9 and thus not E-Verified.
7. E-Verify is for new hires only, not existing employees unless they are working on a covered federal contract.
8. The employer must copy and retain all work authorization documents.
9. By the fourth day of hire, the employer submits the I-9 data to E-Verify.
10. If E-Verify issues a tentative non confirmation (“TNC”) the employee has eight business days to resolve the TNC with SSA or DHS. During this time the employer must pay the employee.
11. In some cases, E-Verify will give an extension for the employee to resolve the issue.
12. On the 10th business day or later, if the employer receives a Final Non-Confirmation (“FNC”) from E-Verify, they must terminate the employee.
13. Any confirmation or non-confirmation should be printed out and stapled to the I-9.
14. The employer must place posters in the workplace indicating that they are enrolled in E-Verify.
4. E-Verify Requirements:
• Registration: Employers can register online at https://www.e-verify.gov/employers/enrolling-in-e-verify
• Mandatory tutorial: Before using E-Verify, HR or other managers responsible or inputting data into the system must take a mandatory online tutorial.
• MOU and posters: Employers are required to sign a Memorandum of Understanding (“MOU”) and also place posters in the workplace advising employees that the employer is enrolled in E-Verify.
5. E-Verify Additional Information:
• Help Desk: When an E-Verify employer has questions about the system, they can call the E-Verify Help Desk at: 888-464-4218.
• New hires only unless Federal Contractor: If the employer is not a federal contractor, then E-Verify is only to be used for new hires, not for existing employees.
• Federal Contractors: The Federal Acquisition Rules (“FAR”) state that E-Verify is mandatory both for new hires and for pre-existing employees working under a covered federal contract. It applies to both the prime contractor and all sub-contractors in the chain. See later discussion regarding subcontractors.
• Federal Contractors can E-Verify the entire workforce: An E-Verify employer that is a federal contractor has the option of E-Verifying all existing employees—both those working on a covered contract and those that are not. This would include pre-November 7, 1986, hires. All employees must complete an I-9 before the E-Verification process. If a federal contractor is E-Verifying the entire workforce, then employees who were hired previously would have expired documents. This will require employers to collect new I-9s before submitting them to E-Verify.
• Subcontractors: Section 6.2 of the federal E-Verify FAR mandates that subcontractors also enroll and use E-Verify.
Evidence required for all subcontractors to prove that they are enrolled in E-Verify would be printed from the “Edit Company Profile” page.
• Use if only remote employee in state with mandatory E-Verify: If the employer only hires one remote employee that lives in a mandatory E-Verify state, they must enroll in E-Verify and run that employee’s I-9 through E-Verify. Having no physical location and no other employees in that state is irrelevant. The employee’s home office would be the “hiring site” and the corporate office in another state would be the “verification site.”
• Paper or digital I-9 gets completed first: With E-Verify, the employee must complete Section 1 of the I-9 on or before the first day of hire. And the employer verifies the original work authorization documents and completes Section 2 of the I-9 by the fourth day of hire (the so-called “Thursday rule”). Both sections should be completed before the E-Verify case is submitted. It is recommended that the employer staple the I-9 supporting documents to the I-9 or upload it if digital. Photo ID documents must be copied for E-Verify employers.
• Mandatory photocopying and retention of photo identity documents: E-Verify users must photocopy and retain all List A photo identity documents. They must be used as part of the photo matching tool and retained with the I-9 after verification. Since List A documents must be copied, it is recommended for E-Verify employers to copy all documents.
• Photo Matching Tool: If the photo matching is triggered, the system will force employers to confirm that the photo displayed in the E-Verify system is identical to the photo on the I-9 documents the employee presented. Photo matching is only triggered if an employee presents the following documents:
• U.S. passport or U.S. passport card;
• Permanent Resident Card (Form I-551); or
• Employment Authorization Document (Form I-766).
E-Verify users must photocopy and retain all List A photo identity documents. They must be used as part of the photo matching tool and retained with the I-9 after verification.
If an employee presents a Permanent Resident Card, Employment Authorization Document or U.S. passport or passport card as the verification document, employers must copy the front and back of the document (or in the case of a U.S. passport, copy the Passport ID page and the Passport Barcode page) and retain the copies with the employee’s Form I-9.
If the employer indicates that the photo displayed on the E-Verify screen does not match the photo on the employee’s document, E-Verify prompts the employer to attach and submit copies of the front and back of the employee’s document electronically.
• Timing of E-Verify submission: The I-9 case must be submitted to E-Verify by the fourth day of hire.
• Social Security Number (“SSN”): E-Verify requires a social security number. If a new hire is work authorized but does not yet have their SSN (i.e., a new H-1B worker from abroad), the E-Verify system has a temporary procedure for handling.
• Recording E-Verify info on I-9 or attaching E-Verify closure confirmation: When an employer successfully confirms work authorization or closes the case for other reasons, they should record the case number on the I-9 or print out the Case Details page and attach it to the I-9.
• Tentative Non-Confirmation (“TNC”): If the employer receives a TNC, they must give the employee eight business days to go to SSA and get confirmation, or in some cases they are referred to DHS. The employer then has two business days to submit the data.
• Final Non-Confirmation (“FNC”): If the employer receives an FNC, they must terminate the individual. If there are extenuating circumstances, the employer can call the E-Verify Help Desk and request additional time.
• E-Verify reminders—Reverifications for Box 4 foreign nationals: As of 2018, E-Verify does provide an e-mail notification to the employer regarding expiring documents of a foreign national (Box 4 on the I-9). However, E-Verify advises that the reminder will only relate to the initial document on which an employee was hired. For example, if an employee was hired on a one-year OPT, E-Verify will issue the reminder 90 days out. However, when an employee is reverified with a STEM OPT or H-1B I-94, they are no longer a new hire. In this case, that information will not be submitted to E-Verify and therefore the E-Verify system will not be able to give a renewal notification. It is recommended to use the I-9 software for tracking purposes. If the employer does not have a digital I-9 software program, they must manually track these expiration dates. Regardless, the paper or digital I-9 does need to be updated in Section 3 for those individuals.
• Termination of E-Verify account / disenrollment: Unless an employer is mandated to enroll in E-Verify by a state, or they are a federal contractor, or STEM OPT employer, they are free to terminate their E-Verify account, or drop some worksites and keep others. The only exception would be if, as part of an I-9 audit, the employer entered into a settlement with ICE where they agreed to enroll and use E-Verify.
6. Additional Practice Pointers
• Employers must pay salary during TNC period until FNC received and issue W-2 the following year: Where the employer is using E-Verify and the new hire receives a TNC they must remain on the payroll until a FNC is received. In that situation, the employer must pay the employee for all time spent on the payroll until they are terminated on the day they receive the Final Non-Confirmation. The employee would be a W-2 employee during that time until they are terminated. The employer could still use the SSN the employee gave them on the W-2 in the following year. The employer might get a no-match letter from the government in the following year but the employer should indicate they were terminated on x date.
• Digital I-9 is not E-Verify: Some employers think that a digital I-9 is E-Verify. The digital I-9 is merely the legal record of the employee’s authorization to work in the United States. E-Verify on the other hand involves submitting the data from the I-9 (either paper or digital I-9) to USCIS for additional verification that the employee truly is in fact work authorized.
• Desk audit: USCIS administers the E-Verify program. They conduct desk audits from the E-Verify headquarters in Syracuse, New York. This involves calling the employer and advising them that a particular E-Verify practice is noncompliant. The desk audits are non-punitive and there are no fines. They are meant to help the employer be fully compliant.
• Data reports: E-Verify employers may use the E-Verify system to run many data reports about their company. This can be very helpful in looking at trends.
• E-Verified employee but employer cannot complete ¬E-Verify: In some cases, with a new hire, the employee will present a receipt for renewal of an acceptable I-9 document which will buy 90 days of employment (the “90-day receipt rule”). The employer will then indicate on the drop-down menu in E-Verify at the time of hire. The employer must then update the I-9 and go back into E-Verify before the 90 days expires. Similarly, the employer should follow this process if someone is work authorized but has not received their social security number.
• Late E-Verify/Employee I-9’d but not E-Verified: The general rule is a late E-Verify is better than not at all. Employers should not attempt to E-Verify employees that were hired before the company enrolled in E-Verify unless the employer is a federal contractor and the employee is working on a “covered contract.” When E-Verifying someone late, use the drop-down menu to indicate it is late and the reason. The employer can also indicate they noticed this based on an internal audit. When running an I-9 through the E-Verify system late (after the fourth day of hire):
• If the employer is missing an I-9, complete one now.
• If the employee was already E-Verified before, do not run them through E-Verify again, just complete the missing I-9.
• Use the drop-down menu to indicate it is late and the reason. (e.g., “Noticed E-Verify not done upon internal audit.”)
• Other possible reasons for not being able to close an E-Verify case includes waiting for an SSN, or if a new hire is invoking the 90-day receipt rule. Use the drop-down menu to indicate those options as well.
• Sample clause in company handbook regarding E-Verify: “Our company uses E-Verify to confirm your authorization to work in the United States. E-Verify is a digital online query system where a paper or digital I-9 is completed. The employer will electronically submit additional data to verify the accuracy of the documents received from the employee.”
• Company with multiple business units and Federal Employer Identification Numbers (“FEINs”): If a company has multiple business units and FEINs, care must be taken that both the I-9 and E-Verify submission corresponded to the correct employer and FEIN.
7. E-Verify’s Recent Changes
On April 2, 2025, the USCIS released a revised version of Form I‑9 (edition 01/20/25, expiration 05/31/2027). Employers using electronic I-9 systems who had the older edition that expired 07/31/26 must update their systems to reflect the new expiration date (05/31/27) by July 31, 2026.
From October 1–8, 2025, the E-Verify system was shut down due to the 43-day government shutdown. Employers were notified of the suspension on October 1, 2025 and had until October 14, 2025, to create cases for employees hired during the outage.
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About The Authors
Greg L. Berk is a Partner in the law firm of Sheppard, Mullin, Richter & Hampton LLP in the firm’s Orange County office. He leads the Firm’s immigration practice and is a Certified Specialist in Immigration and Nationality Law by the State Bar of California Board of Legal Specialization>. He has over 25 years of experience advising on all aspects of U.S. immigration matters. He assists employers worldwide with the hiring and retention of foreign national executives and highly talented individuals that are needed in their U.S. workforce. He also works with investors on E-2, L-1, and EB-5 matters. He also handles I-9 and other immigration compliance matters.
Greg frequently lectures on immigration issues and is a regular contributor to the California Labor and Employment ALERT Newsletter and Sheppard Mullin’s Labor & Employment Law blog. Mr. Berk received his J.D. from Western State University College of Law, his M.B.A. from George Washington University and his B.A. from California State University.
Mia Ndalugi is associate in the Labor and Employment Practice Group with the law firm of Sheppard, Mullin, Richter & Hampton LLP in the firm’s Orange County office. She is a frequent contributor to the California Labor and Employment ALERT Newsletter and Sheppard Mullin’s Labor & Employment Law blog. Ms. Ndalugi received her J.D. from Georgetown University, and her B.S. from University of California, Berkeley, magna cum laude, Highest Honors Distinction.
