E-Verify System Employee Rights
Listed below are frequently-asked questions (FAQs) with answers, about employee rights regarding the E-Verify System. (See the previous page for more about the system, including information for employers.)
Do all U.S. employers use the E-Verify System?
No. Participation is voluntary for most employers, except Federal agencies and contractors. However, a few states have enacted laws that require certain employers to participate and several others are considering similar laws.
Update 4/26/2013: Congress is considering the Legal Workforce Act (H.R.1772 or a future equivalent), a Federal law that requires all U.S. employers to eventually participate in E-Verify.
Do employers have to notify me that they participate in the E-Verify System?
Yes. Each participating employer must at least display a poster that indicates they use the E-Verify System.
Can my employer use the E-Verify System to retroactively verify my employment eligibility?
No, unless your employer is a Federal government agency or a Federal contractor; otherwise, your employer may use E-Verify only if you are a newly-hired employee. Your employer must do so within three business days of your hire date.
Can my employer use the E-Verify System to verify my employment eligibility, even if I was born as a U.S. citizen?
Yes. Participating employers must use E-Verify to verify the work-authorization status of all new-hires within three business days of hiring them, regardless of their national origin or citizenship status; otherwise, employers might face discrimination charges.
Can a potential employer use the E-Verify System to screen me before hiring me?
No. Employers may not use the E-Verify System for pre-employment screening of job applicants. An employer may use the system to verify your employment eligibility only after you have accepted a job offer.
Can I use E-Verify to check my own employment eligibility?
Yes. See the blog post "E-Verify Self Check Launched" for more information.
Must I complete Form I-9 and provide the proper identifying documentation?
Yes, if you want to keep the job you just landed. Federal law requires that all new-hires (including U.S. citizens) complete the employee section of Form I-9 and provide proper identifying documentation when requested by their new employers, whether or not the employers are participating in E-Verify.
What are my employee rights if E-Verify reports that my Form I-9 does not match governmental records?
If the information you provided on Form I-9 does not match records held by the Social Security Administration (SSA) or U.S. Citizenship and Immigration Services (USCIS), then your new employer must promptly give you a "Tentative Non-confirmation Notice" that lets you know what did not match and how to contest it.
If you decide to contest the mismatch, then your new employer must provide you with a referral letter from the E-Verify System that includes specific instructions and contact information. You will have eight Federal government workdays to initiate the process of contesting.
Your new employer may not fire or retaliate against you in any other way while you are contesting. Your employer is also prohibited from discriminating against you on the basis of your national origin.
If your employer retaliates or discriminates against you anyway, then your E-Verify employee rights entitle you to file a discrimination charge with the Office of Special Council (OSC), U.S. Department of Justice (DOJ). Alternately, your representative, such as your attorney, may file the charge on your behalf. (Attorneys often take discrimination cases on contingency). Either way, do not delay for long, as a statute of limitations applies.
If you decide not to contest the mismatch or if you fail to complete the process as required, then you are essentially waiving your E-Verify employee rights. Your employer may legally presume that you are not authorized to work in the USA, even if you are. As a result, your employer may fire you without liability.
What are my employee rights if E-Verify correctly reports that I am not authorized to work in the USA?
Technically, you have few to no employee rights if you are not authorized to work in the USA. In fact, your new employer must fire you on the basis of your status as an undocumented immigrant. Of course, you may quit your job before your employer has a chance to fire you.
Where may I obtain more information about my E-Verify Employee Rights?
Update 10/6/2014: The USCIS has released myE-Verify, a Website for employees that includes Self Check, E-Verify Employee Toolkit and other helpful resources.
Visit the E-Verify Employee Toolkit to obtain more information about your E-Verify employee rights. You may also attend free E-Verify webinars for employees.
Update 11/18/14: The USCIS has released The Employee Rights Quiz, so that you may test your knowledge of your employee rights in the employment eligibility verification process.
If you have general questions about your E-Verify employee rights, then contact the USCIS or OSC. For specific legal advice that fits your particular situation, consult an attorney.
Note: Because the E-Verify System is still evolving, the employee rights information and related links in this article are subject to change. Subscribe to Employee Rights Blog to receive important updates.
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