United States: Walking The E-Verify Tightrope: The Balance Between Compliance And Avoiding Discrimination Claims

Here's the skinny: the Trump administration wants to make E-Verify mandatory for all employers. The electronic database that immediately confirms an individual's eligibility to work in the United States has been promoted as a necessary step in the ramp-up to heightened immigration enforcement, which is a major focus of the new administration. President Trump's first full budget proposal, released by the White House in May, would put undocumented immigrants living in the country under the direct spotlight, as it seeks to augment efforts to prohibit undocumented workers from getting jobs.

Use of the E-Verify system is currently voluntary for employers unless mandated under state or local law, or if you are obligated as a federal contractor under an existing federal contract. However, Congress is considering legislation to mandate E-Verify for all employers, require a status check of all current employees not electronically verified within the three preceding years, and require termination of all employees determined unauthorized to work. Expect to see a healthy discussion on this topic in the months to come, and don't be surprised if you are required to use E-Verify before you know it.

Before this much-anticipated debate kicks into high gear, employers should know that balancing the use of E-Verify while avoiding the implications of employment discrimination can prove to be as simple as walking a tightrope. But fear not! Here is a crash course on what you need to know about E-Verify.

The Basics: Mount The Line

The federal government's web-based system known as E-Verify compares information from an individual's Form I-9 against data in the U.S. Department of Homeland Security (DHS), Social Security Administration (SSA), and Department of State (DOS) records to confirm employment eligibility. An employer uses the information from the I-9 to create a case in the E-Verify system, to commence no later than three business days after the start of employment. After the case is created, the system provides a case verification number, and employers must either record that number on the I-9 or attach the case detail page to the document itself.

After inputting the information, E-Verify immediately responds with an initial case result of either "Employment Authorized" or "Tentative Nonconfirmation" (TNC), indicating whether the information on the I-9 matches the available records. Current statistics show that 97 percent of individuals who are checked through E-Verify are Employment Authorized, meaning the information entered into the system matches the information in the federal agency databases. The individual is thus considered authorized to work and the employer closes the E-Verify case.

However, when the information provided by the employee and inputted into the system does not match with DHS, SSA, or DOS databases, employers will receive a TNC notification. The employer must promptly inform the employee in private, and provide a "Further Action Notice" document for the employee to sign explaining the reason for the TNC.

The employee may choose to contest the results, in which case the employer must issue a Referral Date Confirmation from E-Verify providing contact information and instructions for the employee to contact the DHS or SSA. The employee then has eight federal government work days after initiating the referral to contact the appropriate federal agency to resolve the matter. If the matter is resolved, and the SSA or DHS update their records to reflect a match and an Employment Authorized result, the employer may close the case. However, if the individual refuses to contest the TNC or if a Final Nonconfirmation (FNC) result is issued, the employer may terminate employment.

Lucky 13: Walking The Tightrope With A Safety Net

Misuse of the E-Verify system by an employer could lead to a charge of discrimination based on citizenship, immigration, or national origin. But if you use the system properly, you will receive the benefit of a safe harbor. To avoid any implication of E-Verify-related employment discrimination, you should consider the following 13 steps:

  1. Conspicuously post the "Notice of E-Verify Participation" and "Right to Work" posters in both English and Spanish.
  2. Do not use E-Verify before an individual has accepted a job offer and completed a Form I-9.
  3. Do not use E-Verify to verify any employee hired before November 6, 1986.
  4. Do not use E-Verify to re-verify an individual for continuing employment after their employment authorization has expired. Instead, instruct the employee to either complete Section 3 of their I-9 or fill out a new I-9. Remember to use E-Verify only for new hires or rehired employees.
  5. Keep copies of the following I-9 List A documents: Permanent Resident (PR) card, passport, passport card, and Employment Authorization Document (EAD).
  6. Do not use E-Verify as a tool to prescreen or discriminate against individuals based on their national origin, citizenship, or immigration status.
  7. Do not ask employees who receive a TNC to provide additional work authorization documentation.
  8. Remember to provide a Further Action Notice explaining the reason for the TNC result.
  9. Do not influence an employee's decision whether to contest a TNC result.
  10. Do not take any adverse action against an employee based on their choice to leave an E-Verify TNC uncontested. You are prohibited from taking any adverse action (including firing, suspending, withholding pay or training, or simply infringing upon the individual's employment) against an employee unless and until the employee receives an FNC or a "DHS No Show".
  11. Do not ask employees to provide specific types of documents during the employment eligibility process.
  12. Remember that simple typos can cause a TNC result, so don't jump to conclusions during the process.
  13. Finally, understand that use of the E-Verify system does not relieve you of your I-9 obligations.

Careful, Don't Slip!

While maintaining your balance, one misstep can result in a fall. In the event you slip up, the Immigrant and Employee Rights Section (IER) of the Department of Justice Civil Rights Division reviews charges of discrimination and investigates all alleged discriminatory conduct pursuant to the Immigration and Nationality Act (INA).

If an employee suspects their employer is discriminating based on citizenship, immigration status, national origin, or other discriminatory misuse of the E-Verify system, the employee can notify IER. The agency will either contact the employer to resolve the issue or, when necessary, issue charge forms to victims of discrimination. Upon receipt of a charge of discrimination, IER takes approximately seven months to complete an investigation. Violators are subject to civil penalties, back pay awards, hiring orders, the imposition of injunctive relief to end discriminatory practices, and attorneys' fee awards.


To maintain balance and avoid a tumble, you should adopt a written immigration compliance policy, train all staff on how to enforce it, and employ ongoing education of the E-Verify system. You should also consider taking advantage of the IER outreach and education programs to gain a firm understanding of the antidiscrimination provisions of the INA.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.