Employers face increasing scrutiny over how they verify an individual’s work authorization in the United States. EVerify adds a digital layer of assurance, confirming employment eligibility against government records while protecting against costly compliance breaches.
This guide explains how the E-Verify system works, when its use is required and how to avoid common errors that trigger penalties or discrimination claims.
Section A: What is EVerify?
EVerify, officially known as e-Verify, is a web-based confirmation system that allows participating employers to confirm the eligibility of new-starters to work in the United States. Under this system, E-Verify enrolled employers can verify the identity and employment eligibility of new recruits by electronically matching information given by employees on the employee’s Form I-9, Employment Eligibility Verification, against online records available to the Department of Homeland Security (DHS) and the Social Security Administration (SSA).
E-Verify is free to use and is available to participants in all 50 US states. It is also available in the District of Columbia, Puerto Rico, Guam, the US Virgin Islands and the Commonwealth of the Northern Mariana Islands.
Form I-9 is the paperwork that must be completed to enable US employers to meet the mandatory legal requirement to verify a person’s work authorization status prior to hiring them. Any failure to comply with the criteria for completing Form I-9, or violation of the verification process, can result in significant penalties for the employer under federal law. E-Verify does not replace Form I-9. It is an additional electronic check that complements the I-9 process.
Section B: Is EVerify Mandatory for Employers?
The employment eligibility verification process by way of Form I-9 came into force in 1986, when employers were required by law to verify the identity and employment authorization of new hires under the Immigration Reform and Control Act. To improve the accuracy and integrity of this verification process, E-Verify was introduced in 1996.
In most cases, EVerify is voluntary, although employers with federal contracts containing the Federal Acquisition Regulation E-Verify clause are required to enroll in this system as a condition of federal contracting. Where the FAR 52.222-54 clause is in a covered contract, enrolled employers verify all new hires within 3 business days after the date of hire and also verify existing employees assigned to the covered contract within the applicable timelines, typically within 90 calendar days of enrollment and within 30 calendar days of assignment to the contract.
Employers may also be required to participate in E-Verify if state-legislation mandates its use, such as a condition of business licensing. A number of states require E-Verify in whole or in part for public employers, contractors or all employers, while some states restrict uses that go beyond federal rules. Multi-state employers should check current state requirements and any restrictions that apply where they hire.
However, even where E-Verify is not mandatory, it strengthens the Form I-9 employment eligibility verification process that all employers, as a matter of law, must follow. Incorporating E-Verify to the existing Form I-9 process affords employers further ability and confidence in maintaining a legal workforce.
Section C: How does the EVerify System Work?
As part of the recruitment process, both the employer and employee will be required to complete Form I-9, where this paperwork must be completed for every individual hired to perform labor or services in return for remuneration, regardless of their nationality or immigration status. This includes both US citizens and overseas nationals.
Form I-9 comprises two main sections, where all employees must complete Section 1 of the form no later than the first day of paid employment. For employers that do not participate in E-Verify, the Social Security number is optional in Section 1. For employers that participate in E-Verify, the employee is required to provide a Social Security number in Section 1. An employee who has applied for but not yet received an SSN may still start work, and the employer completes the E-Verify case after the SSN is available.
Section 2 of the form must then be completed by the employer, or by any authorized representative on the employer’s behalf, within 3 business days following the employee’s first day of work. If the employer participates in E-Verify, the employer must also create the E-Verify case no later than the third business day after the employee starts work for pay. When E-Verify is unavailable due to a system outage, DHS pauses the timing requirement and later sets a catch-up deadline.
In Section 1, the employee must provide their personal information and attest to their employment authorization. They must also give the employer acceptable documentation as evidence of their identity and legal entitlement to work. The employer, or any authorised representative, must carefully examine this documentation to determine whether it relates to the person presenting it and reasonably appears to be genuine, before recording the document information on the employee’s Form I-9 under Section 2. You cannot create an E-Verify case based only on a receipt for a lost, stolen or damaged document. You create the case after the actual document is presented, subject to limited document-specific exceptions under the I-9 rules.
At this stage, if an employer participates in E-Verify, they can double check the information given by the employee. As a web-based verification companion to Form I-9, E-Verify allows an employer to easily verify the identity and eligibility of new-starters to work in the US by matching their Form I-9 information against records held by government agencies.
If the employer participates in E-Verify, they may also be eligible to remotely examine an employee’s documentation under the alternative procedure authorized by the DHS. Employers must still complete Form I-9 for each newly-hired employee in the US, but the employee’s documentation does not have to be reviewed in their physical presence.
Section D: E-Verify Remote Checks
When enrolled in E-Verify, the employer, or any authorized representative on their behalf, can complete certain steps to remotely examine Form I-9 documents. These include:
- asking the employee to transmit a copy of their Form I-9 documentation to the employer and to provide their social security number in Section 1 of Form I-9
- examining copies of both the front and back of Form I-9 documents, or any acceptable receipt, to ensure that this documentation reasonably appears to be genuine
- conducting a live video interaction with the employee, requiring them to present the same documentation during the live interaction to ensure that this relates to them
- indicating on Form I-9, by completing the corresponding box, that remote rather than physical examination of an employee’s documents has been completed
- recording key details on Form I-9 relating to the document(s) examined, including the document title, the issuing authority, any document number and any expiration date
- signing a declaration stating that they have examined the documentation presented by the employee, that this appears to be genuine and to relate to the employee named and, to the best of their knowledge, the employee is authorized to work in the United States
- retaining a copy of the identity and employment authorization documentation for the employer’s records where, in the event of a Form I-9 audit by federal government officials, both Form I-9 and copies of the documentation presented by the employee for document examination in the verification process must be made available.
The DHS alternative procedure is available only to employers that participate in E-Verify in good standing, are enrolled for each hiring site that uses the alternative procedure and complete the required E-Verify training embedded in enrollment. Employers must conduct a live video interaction, retain clear and legible copies of the front and back of the documents used for the alternative procedure and tick the alternative procedure checkbox in Section 2 or during reverification. Employers may choose to use the alternative procedure only for remote hires while continuing in-person inspection for on-site or hybrid workers, provided the approach is applied consistently and without discrimination.
Section E: How to use EVerify
To use E-Verify, after completing Form I-9 for an employee, the employer must create a case in the E-Verify system that includes information from Sections 1 and 2 of Form I-9. After creating the electronic case, the employer should receive a response from E-Verify within a matter of seconds regarding the employment authorization of the employee.
If E-Verify provides a response indicating a “tentative nonconfirmation” (TNC), this does not necessarily mean that the employee is unauthorized to work in the United States, but rather that E-Verify is unable to confirm the employee’s authorization to work at this stage. In the case of a mismatch, the employer must notify the employee with a Further Action Notice, discuss the notice in private and provide the employee the option to contest. If the employee chooses to contest, the employee has a set period, typically 8 federal government working days after the case is referred, to contact SSA and or DHS and take the steps described in the notice. The employer must allow the employee to work without delay or adverse action while the case is pending.
Enrolled employers should also display the E-Verify Participation and the Right to Work posters in English and Spanish at each hiring site. If onboarding is online, the posters should be made available in a way that applicants and new hires can view them.
After the EVerify Check
Once the documentation provided by the employee has been checked by the employer using E-Verify, and Form I-9 has been completed and signed by both the employer and employee, Form I-9 must be retained by the employer for 3 years after the date that the employee was hired, or for one year after employment is terminated, whichever is later.
Where the DHS-authorized remote procedure has been used, in contrast to when physical document examination is undertaken, copies of the documents(s) examined must also be retained. If the documentation is two-sided, a copy of both the front and back must be kept. If photo matching was triggered for a passport, Permanent Resident Card or EAD, retain a copy of that document with the I-9 even if you did not use the alternative procedure.
| E-Verify At a Glance | Key Information |
|---|---|
| Scope | Complements, never replaces, Form I-9 for all hires in the US and covered territories. |
| Who uses it | Voluntary for most; required for covered federal contractors and in some states. |
| Case timing | Create each E-Verify case no later than the 3rd business day after start of paid work. |
| SSN rule | SSN in Section 1 is required for E-Verify participants; employee may start work while SSN is pending. |
| List B photo | If you use E-Verify, any List B document must contain a photograph. |
| Photo matching | Triggered for US passports, PR cards and EADs. Keep a copy of the document with the I-9. |
| Remote option | DHS alternative procedure allowed for eligible E-Verify employers, with live video and front/back copies retained. |
| Receipts | Do not open a case based only on a replacement-document receipt; wait for the actual document. |
| TNC handling | Provide the Further Action Notice, allow contest, and keep the employee working while the case is pending. |
| Prescreening | Prohibited. Do not run E-Verify before hire or to reverify expiring documents. |
| Federal contractors | Verify all new hires after enrollment and existing employees assigned to the covered contract on set timelines. |
| Posters | Display E-Verify Participation and Right to Work posters in English and Spanish, or provide online access. |
| Recordkeeping | Keep I-9s for 3 years after hire or 1 year after termination, whichever is later; retain required copies per rules. |
| System outages | DHS pauses timing during outages and permits catch-up case creation when service resumes. |
| State law note | Requirements and restrictions vary by state; align policies with both federal and state rules. |
Section F: EVerify Documents
If the employer is enrolled in E-Verify, they can accept any Form I-9 document from the list of acceptable documents, or combination of acceptable documentation, but if the employee presents a List B and C combination, the List B (identity only) document must contain a photo. All documents with an expiration date must be unexpired although documents automatically extended by the issuing authority should be treated by the employer as such.
The list of acceptable documents for E-Verify purposes is on page 2 of Form I-9, where employees can present either one selection from List A, or a combination of one selection from List B and List C instead. Any documents from List A will establish both identity and employment authorization for the employee presenting it, while documents from List B establish identity only and documents from List C establish only employment eligibility.
In lieu of any of the acceptable documents set out in Lists A, B or C, an employee can instead provide the employer with an acceptable receipt. This could include a receipt for either a replacement of a lost, stolen or damaged acceptable document. You should not create an E-Verify case based only on a receipt for a replacement document. Create the case after the actual document is presented, subject to any limited exceptions under the I-9 rules.
E-Verify List A documents
For E-Verify purposes, documents from List A can include a US passport, a Permanent Resident Card (a green card), a foreign passport with a temporary I-551 stamp, or an Employment Authorization Document (EAD) on Form I-766 containing a photo.
The employee will only usually need to produce one List A document, although more than one document may be needed to comprise an acceptable List A document. For example, for an employee temporarily authorized to work by reason of their nonimmigrant status, they will need both their passport and status-endorsed Form I-94 (Arrival/Departure Record).
When E-Verify photo matching is triggered for a US passport or passport card, a Permanent Resident Card or an EAD, you should obtain and retain a copy of that document with the I-9, even when you did not use the DHS alternative procedure.
E-Verify List B & C documents
For E-Verify purposes, documents from List B can include a driver’s license or a federal, state or local government-issued ID card, provided this has a photograph of the holder. For E-Verify participants, any List B document must contain a photo.
Documents from List C can include a social security account number card, so long as the card does not contain any work restrictions and is valid for employment. A List C document could also include an original or certified copy birth certificate bearing an official seal and issued by either a US state, county, municipal authority or territory.
Can the employer specify E-Verify documentation?
The employee must be allowed to select which documentation they will present from the list of acceptable documents for E-Verify purposes, where the employer, or any authorized representative on the employer’s behalf, must accept documentation that reasonably appears to be genuine and relating to the person presenting it. This is because, under anti-discrimination laws, employers cannot specify which documentation employees must present to either establish their identity or verify their employment eligibility.
This essentially means that employers are prohibited from specifying certain documents over others because of an employee’s citizenship, immigration status or national origin, requesting either more or different documents than are required to establish identity and verify employment eligibility. They are also not allowed to reject reasonably genuine-looking documents. By treating employees differently, this could expose the employer to a civil penalty for what is known in US law as unfair documentary practices. Employers with questions about document choice or document abuse risk can consult DOJ’s Immigrant and Employee Rights Section resources.
Section G: Selective Use of EVerify
When using E-Verify, participating employers must follow certain procedures specifically designed to protect employees from any unfair employment actions, including:
- using E-Verify for all new hires, including both US citizens and noncitizens, and not using the system selectively
- not using E-Verify to prescreen applicants for employment or reverifying employees who have temporary employment authorization
- not terminating or taking any other adverse action against an employee based on a mismatch response generated by the E-Verify system.
If an employer participates in E-Verify and they choose to offer the alternative remote procedure to physically examining Form I-9 documentation, they must do so consistently for all employees. This is because employers must not treat employees any differently based on their citizenship, immigration status or national origin, where offering different verification procedures for different staff may give rise to a risk of discrimination. An employer may adopt the alternative DHS-authorized procedure for remote-hires only while continuing to apply physical examination processes to all employees working onsite or in a hybrid capacity, provided the approach is consistent and non-discriminatory.
For federal contractors with the FAR E-Verify clause, E-Verify is applied company-wide for all new hires after enrollment and to existing employees assigned to the covered contract within the required timelines, not just to noncitizens.
Section H: Need Assistance?
NNU Immigration are specialist US attorneys. We provide expert advice to employers on US immigration compliance, including auditing, training and consultancy services to help organizations meet their legal duties and avoid penalties. Contact us to discuss your organisation’s compliance needs.
Section I: EVerify FAQs
Who can use E-Verify?
E-Verify is available to employers in all 50 states and the District of Columbia, Puerto Rico, Guam, the US Virgin Islands and the Commonwealth of the Northern Mariana Islands. Participation is voluntary unless required by a federal contract clause or by state law.
Does E-Verify replace Form I-9?
No. Form I-9 is still required for every employee hired for work in the United States. E-Verify is an electronic check that complements the I-9 process.
When do I have to create an E-Verify case?
Create the case no later than the third business day after the employee starts work for pay. If E-Verify is down due to a system outage, follow DHS guidance on catch-up deadlines once service resumes.
Can I run an E-Verify check before making a job offer?
No. E-Verify cannot be used to prescreen applicants. It is used only after hire and after the I-9 is completed.
Do employees have to provide a Social Security number?
For E-Verify participants, the SSN is required in Section 1. Employees without an SSN may start work while the number is being issued, and the case is created after the SSN is available.
What if an employee presents a receipt for a lost or stolen document?
Do not create an E-Verify case based only on a receipt for a replacement document. Create the case after the actual document is presented, subject to limited exceptions under the I-9 rules.
What is photo matching in E-Verify?
When an employee presents a US passport or passport card, a Permanent Resident Card or an Employment Authorization Document, E-Verify may prompt you to compare the photo on the document to a DHS photo. Retain a copy of the document when photo matching occurs.
Can I specify which documents an employee should show?
No. The employee chooses which acceptable documents to present. Employers should not request more or different documents or reject documents that reasonably appear to be genuine and relate to the person.
Are List B documents with a photo required?
Yes. For E-Verify participants, any List B document must contain a photograph. This applies to all new hires, including minors where applicable document options exist.
What is a Tentative Nonconfirmation (TNC)?
A TNC means E-Verify could not confirm work authorization at that stage. You must give the Further Action Notice, discuss it in private and allow the employee to choose whether to contest. If contested, the employee typically has 8 federal working days to contact SSA or DHS. The employee continues working while the case is pending.
Can I take adverse action after a TNC?
No. Do not delay start dates, reduce hours or terminate based on a TNC. Wait for a Final Nonconfirmation or Employment Authorized result before taking action consistent with policy and law.
How do I close an E-Verify case?
After a final result, close the case in E-Verify and select the appropriate closure reason. Keep the I-9 and any required copies for the retention period.
Do I have to reverify in E-Verify when a document expires?
No. E-Verify is not used for reverification. Reverification is an I-9 process for certain employees with time-limited authorization. Do not reverify US citizens or permanent residents solely because a document expiration date appears on the card.
Can I use E-Verify for existing employees?
Generally no, unless you are a federal contractor with the FAR E-Verify clause and are verifying employees assigned to the covered contract within the required timelines.
How does the DHS alternative procedure for remote examination work?
Eligible E-Verify employers may examine I-9 documents via a live video interaction, retain front and back copies, and tick the alternative procedure box on the I-9. Apply the procedure consistently and avoid discriminatory practices.
Can I use the alternative procedure for remote hires only?
Yes. You may use the alternative procedure for fully remote hires while continuing physical inspection for on-site or hybrid workers, provided the policy is consistent and non-discriminatory.
Do I need to post any notices?
Yes. Display the E-Verify Participation and the Right to Work posters in English and Spanish at each hiring site or provide them electronically in online onboarding.
Are independent contractors or unpaid volunteers subject to E-Verify?
No. E-Verify applies to employees hired for wages or other remuneration. Do not run E-Verify on independent contractors or true volunteers.
What about STEM OPT students?
Employers of F-1 students on STEM OPT are required to participate in E-Verify as a condition of the STEM OPT extension. Complete I-9s and create E-Verify cases for these hires like any other employee.
Can I enroll only some hiring sites in E-Verify?
You can choose which hiring sites to enroll, but for any site that participates you should run E-Verify on all new hires at that site. If using the alternative procedure, enroll all sites that use it.
What records do I keep for E-Verify?
Retain Form I-9 for 3 years after the date of hire or 1 year after employment ends, whichever is later. Keep copies of documents used under the alternative procedure and documents used in photo matching. If you copy documents for some employees, apply that practice for all employees.
What if my state restricts E-Verify practices?
Some states mandate E-Verify for certain employers. Others restrict use beyond federal rules, including limits on checks of existing workers or prescreening. Multi-state employers should align policies with both federal and state requirements.
How do federal contractors apply E-Verify?
Covered contractors with the FAR clause verify all new hires after enrollment and verify existing employees assigned to the covered contract within set timelines. Follow the clause instructions and your E-Verify memorandum of understanding.
What if an employee’s name changes after hire?
Update Form I-9 with the new name and any supporting notation. Do not run a new E-Verify case solely for a legal name change.
Can an agent or vendor handle E-Verify for us?
Yes. Employers may use E-Verify employer agents. The employer remains responsible for compliance, training, timing and recordkeeping.
Is E-Verify available for employees hired to work outside the United States?
No. E-Verify and Form I-9 apply only to employment in the United States and its territories listed above.
Section J: Glossary
| Term | Definition |
|---|---|
| E-Verify | Web-based system that compares Form I-9 data to DHS and SSA records to confirm work authorization. |
| Form I-9 | Employment Eligibility Verification form required for every employee hired to work in the United States. |
| DHS | Department of Homeland Security, holds immigration status records used by E-Verify. |
| SSA | Social Security Administration, provides data used to confirm identity and SSN information. |
| SSN | Social Security number. Required in Section 1 for employees of E-Verify participants. |
| Tentative Nonconfirmation (TNC) | Preliminary mismatch result when E-Verify cannot confirm work authorization at that stage. |
| Final Nonconfirmation (FNC) | Final result after a mismatch remains unresolved, permitting employer action consistent with law and policy. |
| Further Action Notice (FAN) | Notice the employer gives an employee after a TNC explaining next steps and contest options. |
| Employment Authorized | E-Verify result confirming the employee’s work authorization. |
| Case Creation Deadline | Latest date to open an E-Verify case, no later than the third business day after the start date for pay. |
| Photo Matching | E-Verify step comparing a document’s photo to a DHS photo for passports, PR cards or EADs. |
| Alternative Procedure | DHS-authorized remote document examination process available to eligible E-Verify employers. |
| Live Video Interaction | Real-time video meeting where the employee presents the same documents used for I-9 completion. |
| List A Documents | Documents that establish both identity and work authorization, for example a US passport or a PR card. |
| List B Documents | Identity-only documents. For E-Verify participants a List B document must contain a photo. |
| List C Documents | Work-authorization-only documents, for example an unrestricted Social Security card. |
| Receipt Rule | Allows temporary use of an acceptable receipt in place of a lost or damaged document for I-9, not for opening an E-Verify case. |
| Reverification | I-9 process to reverify ongoing work authorization for certain employees. Not performed in E-Verify. |
| Hiring Site | Physical or virtual location where hiring and I-9 completion occur and where E-Verify may be applied. |
| Federal Contractor FAR Clause | Contract term that requires covered contractors to use E-Verify for new hires and workers on the covered contract. |
| Employer Agent | Third party authorized to perform E-Verify functions for an employer. The employer remains responsible for compliance. |
| IER | DOJ Immigrant and Employee Rights Section, enforces anti-discrimination rules related to the I-9 and E-Verify. |
| Document Abuse | Requesting more or different documents, or specifying documents, or rejecting valid documents because of a protected trait. |
| Right to Work Poster | DOJ notice employers display with the E-Verify Participation poster at each hiring site or online. |
| Outage Guidance | DHS rules that pause timing when E-Verify is unavailable and permit catch-up case creation after service resumes. |
| STEM OPT Employer | Employer of an F-1 student on a STEM OPT extension. Participation in E-Verify is required for the extension. |
| Commonwealth of the Northern Mariana Islands | US territory covered by E-Verify participation along with states, DC and other territories. |
Author
Founder & Principal Attorney Nita Nicole Upadhye is a recognized leader in the field of US business immigration law, (The Legal 500, Chambers & Partners, Who's Who Legal and AILA) and an experienced and trusted advisor to large multinational corporates through to SMEs. She provides strategic immigration advice and specialist application support to corporations and professionals, entrepreneurs, investors, artists, actors and athletes from across the globe to meet their US-bound talent mobility needs.
Nita is an active public speaker, thought leader, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals.