e-Verify

The Hiring Line: Work Authorization, Sponsorship, and E-Verify

You have 10 open roles and 100 applicants, and you want to know now who can actually work. But in the eyes of the law, curiosity can look a lot like discrimination. To protect your company, you need to know exactly where the “No-Go” zone begins.

The Pre-Offer “No-Go” Zone

Until you’ve extended a formal offer, your curiosity is legally capped. Federal guidance (under the INA) is a “two-question only” territory.

You CAN ask:

  1. “Are you legally authorized to work in the United States?”
  2. “Will you now or in the future require sponsorship for employment visa status?”

You CANNOT ask:

  • “Are you a U.S. citizen?”
  • “What is your visa type?” (H-1B, L-1, etc.)
  • “Can I see your Green Card or Passport?”
  • “Where were you born?”

Digging into citizenship or requesting documents too early is considered a discriminatory hurdle. Unless you fall under a narrow exception, it’s a fast track to a DOJ audit.

The Narrow Exception

There are limited situations when you can ask about citizenship upfront. This only applies if a law, executive order, or government contract requires it. Examples include:

  • Federal jobs: specific roles requiring U.S. citizenship.
  • Export controls: positions dealing with ITAR/EAR (defense and high-tech) where access is restricted by nationality.
  • Security clearances: roles that require a “Secret” or “Top Secret” stamp from the government.

E-Verify is for Post-Offer Only

E-Verify is a web-based system operated by the USCIS that electronically compares a new hire’s Form I-9 information with DHS and SSA records to confirm work authorization. It’s free and voluntary for most employers, although mandatory for certain federal contractors and by some states as a condition of business licensing or employment practices. Employers must create an account and sign a Memorandum of Understanding (MOU) with DHS and SSA before using E Verify.

Here’s the E-Verify flow:

  • Employee accepts an offer
  • Employee completes Form I-9
  • Employer enters I-9 data into E Verify
  • System checks the data against SSA and DHS records
  • Employer receives results

What Can Background Screening Companies Do?

Background screening companies must follow the same pre‑offer rules as employers, meaning they cannot check, request, or verify citizenship, visa type, or immigration status.

After a conditional offer, they can help verify work authorization only by reviewing the documents the employee provides for Form I‑9 and running E‑Verify, providing they are registered as an E‑Verify Employer Agent and the employer is enrolled. (Employers must still sign the MOU with the DHS and remain legally liable for any compliance slip-ups.) ‑

 

Disclaimer: This communication is for general informational purposes only and does not constitute legal advice. The summary provided in this alert does not, and cannot, cover in detail what employers need to know about the amendments to the Philadelphia Fair Chance Law or how to incorporate its requirements into their hiring process. No recipient should act or refrain from acting based on any information provided here without advice from a qualified attorney licensed in the applicable jurisdiction.

March 10th, 2026|Categories: Compliance Corner, Employment Decisions|Tags: , |

What’s up with California’s new E-Verify law?

The new law, AB 622, which went into effect January 1, 2016, adds Labor Code section 2814 to strengthen current California prohibitions on employers’ use of E-Verify and other electronic employment eligibility verification systems.  Labor Code section 2811 (enacted in 2011) already prohibits private employers from using E-Verify or such other verification systems, unless required by federal law or as a condition of receiving federal funds.

The amended Labor Code section 2814 expands the definition of an unlawful employment practice to prohibit an employer or any other person or entity from using the E-Verify system at a time or in a manner not required by a specified federal law or not authorized by a federal agency memorandum of understanding to check the employment authorization status of an existing employee, or an applicant who has not received an offer of employment, except as required by federal law or as a condition of receiving federal funds. The new law also requires an employer that uses the E-Verify system to provide to the affected employee any notification issued by the Social Security Administration or the United States Department of Homeland Security containing information specific to his/her E-Verify case or any tentative non-confirmation notice. Employers will now face a civil penalty of $10,000 for each violation of these provisions.

  • Read the text of AB 622
  • Read guidance published by the U.S. Department of Homeland Security on conducting internal audits regarding Form I-9 compliance
February 23rd, 2016|Categories: Employment Decisions|Tags: , |

E-Verify has new safeguard to combat identity theft

On November 18, 2013, the U.S. Citizenship and Immigration Services (the “USCIS”) announced a new E-Verify safeguard that enables USCIS to “lock” a Social Security number that appears to have been misused, protecting it from further misuse in the E-Verify process.

If an employee attempts to use a locked Social Security number, E-Verify will generate a “tentative non-confirmation” status. The employee will then have the opportunity to contest the result at a local Social Security Administration (‘SSA”) field office. If an SSA officer confirms that the employee’s identity matches the number, the non-confirmation will be converted to “employment authorized’” status.

December 9th, 2013|Categories: Employment Decisions|Tags: , , |

Grace period for E-Verify compliance ends November 5, 2013

Now that E-Verify services are back online, employers must create an E-Verify case for each employee hired during the shutdown (October 1-17, 2013) no later than November 5, 2013. When prompted by the E-Verify system to explain why the case was initiated late (a violation of the three-day E-Verify rule), employers should select “other” from the drop-down menu and enter into the text field “federal government shutdown.” See the USCIS E-Verify instructions page for handling specific situations.

October 25th, 2013|Categories: Employment Decisions|Tags: , |

Social Security number (SSN) randomization to take effect in June 2011

The Social Security Administration (SSA) describes the SSN randomization as a forward-looking project to help protect the integrity of the Social Security number by establishing a new random assignment methodology. The SSA promises to still provide online services for direct SSN verifications, as follows:

  • SSA’s Social Security Number Verification Service – available to employers.
  • Department of Homeland Security’s eVerify Service – available to employers to determine employment eligibility.
  • SSA’s Consent-Based SSN Verification Service – available to enrolled private companies and government agencies for a fee.

Federal and state agencies will continue to maintain several SSN verification
systems, as outlined at http://www.ssa.gov/gix/eprojects.html.

December 21st, 2010|Categories: Risk Management|Tags: , , |
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