§Employer Compliance Guide
Does a New York Employer Have to Use E-Verify?
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Quick answer
Not by default — New York does not require most private employers to enroll. It becomes mandatory for federal contractors whose contracts carry the FAR E-Verify clause, and for some state or local government contractors. Any employer may enroll voluntarily, but once enrolled must verify every new hire and follow every rule, including the strict notice and waiting-period requirements when an employee receives a Tentative Nonconfirmation.
Complete guide to E-Verify requirements, enrollment, proper use, TNC resolution, and avoiding penalties. Essential for federal contractors and employers committed to compliance.
01Overview
What is E-Verify?
E-Verify is a free, web-based system operated by the Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA). It allows employers to electronically verify employment eligibility of newly hired employees by comparing Form I-9 information to government records.
How It Works
- 1. Employee completes Form I-9
- 2. Employer enters I-9 info into E-Verify
- 3. System checks SSA and DHS databases
- 4. Result within seconds: authorized or TNC
- 5. Employee resolves TNC if needed
Key Facts
- • Free government service
- • Supplements (doesn't replace) Form I-9
- • Creates query within 3 business days of hire
- • Photo matching tool for certain documents
- • Available in English and Spanish
§People also ask
What happens after a Tentative Nonconfirmation (TNC)?
The employer must promptly notify the employee and provide the Further Action Notice, then allow 8 federal government working days for the employee to contact SSA or DHS. The employer cannot take adverse action — termination, reduced hours, delayed training — while the TNC is pending.
Can E-Verify be run before Form I-9 is complete?
No. Form I-9 must be completed first — Section 1 by the employee on or before the first day of work, Section 2 by the employer within 3 business days of hire. E-Verify is run after I-9 is complete, with the case created within 3 business days of hire.
What is the penalty for misusing E-Verify?
Program violations — late case creation, selective use, screening applicants before hire — can lead to suspension from E-Verify and loss of federal contracts. Discrimination violations, such as requesting specific documents or treating employees differently by national origin, can draw a DOJ investigation, civil penalties, and back pay.
02Who is covered
Who Must Use E-Verify?
Federal Contractors (FAR E-Verify Clause)
Mandatory for federal contractors and subcontractors with contracts containing the FAR E-Verify clause (contracts awarded after September 8, 2009).
Requirements:
- • Contracts over $250,000
- • Performance period 120+ days
- • Must verify ALL new hires (entire company, not just contract workers)
- • Must verify existing employees working on federal contract
State-Specific Requirements
Some states require E-Verify for certain employers. New York does not currently mandate E-Verify for all employers, but some may be required based on state contracts or specific legislation.
Check with your legal counsel about state-specific E-Verify requirements, especially if you do business with state or local government entities.
Voluntary Enrollment
Even if not required, employers may voluntarily enroll in E-Verify to ensure workforce compliance and demonstrate good faith hiring practices.
Benefits
- • Reduced risk of hiring unauthorized workers
- • Protection from certain penalties
- • Streamlined verification process
Considerations
- • Must follow all E-Verify rules
- • Cannot use selectively (must verify all new hires)
- • Training required for HR staff
03How it works
How E-Verify Works (Step-by-Step)
Complete Form I-9 First
Employee completes Section 1 of I-9 on or before first day of work. Employer examines documents and completes Section 2 within 3 business days. E-Verify is run AFTER I-9 is completed, not instead of.
Create E-Verify Case
Within 3 business days of hire, enter employee information from I-9 into E-Verify system. Enter exactly as it appears on documents - typos cause TNCs.
Receive Initial Result
System returns result within seconds: (1) Employment Authorized - case closed, or (2) Tentative Nonconfirmation (TNC) - employee must take action, or (3) DHS Verification in Process - wait for further instructions.
Notify Employee of TNC (if applicable)
If TNC received, you MUST promptly notify employee and provide Further Action Notice. Employee decides whether to contest. You cannot take adverse action during this period.
Employee Resolves TNC (if applicable)
Employee has 8 federal government working days to contact SSA or DHS to resolve TNC. Employee provides evidence to correct records. Employer refers case in E-Verify.
Receive Final Result
After employee contacts agency: (1) Employment Authorized - case closed, or (2) Final Nonconfirmation - employee not work-authorized. You may terminate employment based on final nonconfirmation.
04TNCs
Tentative Nonconfirmations (TNCs)
What Causes TNCs?
SSA TNCs
- • Name doesn't match SSN records
- • Citizenship status issue in SSA database
- • Typographical error in data entry
- • Recent name change (marriage/divorce)
DHS TNCs
- • Work authorization expired
- • Immigration status not current in system
- • USCIS number doesn't match
- • Photo non-match on document
Employer Obligations When TNC Received
- Promptly notify employee (same day if possible)
- Provide Further Action Notice to employee
- Allow employee to review case details
- CANNOT terminate or take adverse action during resolution period
- CANNOT influence employee's decision to contest
- Document all steps taken
- Give employee 8 federal government working days to resolve
05Penalties
Penalties for Non-Compliance
E-Verify Violations
- • Using E-Verify before completing I-9
- • Creating case more than 3 days after hire
- • Not providing TNC notice to employee
- • Terminating employee during TNC period
- • Using E-Verify selectively (only some hires)
- • Screening job applicants before hire
Consequences:
Suspension or termination from E-Verify program, loss of federal contracts, discrimination charges
Discrimination Violations
- • Requesting specific documents
- • Rejecting valid documents
- • Only verifying foreign-appearing employees
- • Delaying work start for E-Verify
- • Treating employees differently during TNC
- • Retaliating against employees who complain
Consequences:
DOJ investigation, civil penalties, back pay to victims, hiring of discriminated individuals
06Best practices
E-Verify Best Practices
Train All Users
Complete E-Verify tutorial, stay updated on policy changes, designate E-Verify coordinators
Complete I-9 First
Never use E-Verify before I-9 is completed. This is a violation and can lead to program suspension
Timely Case Creation
Create E-Verify case within 3 business days of hire date, not before employee starts work
Accurate Data Entry
Enter information exactly as it appears on documents. Double-check before submitting to avoid TNCs
Consistent Application
Verify ALL new hires - cannot pick and choose based on appearance, name, or accent
Proper TNC Handling
Notify employee promptly, provide Further Action Notice, allow full 8 days to resolve
Maintain Records
Keep E-Verify case printouts with I-9 forms. Retain for same period as I-9 (3 years after hire or 1 year after separation)
Protect Privacy
Do not share E-Verify results with unauthorized persons. Keep TNC information confidential
Display Notices
Post required notices: E-Verify participation poster, anti-discrimination notice, Right to Work notice
07What changed recently
What Changed Recently
Since August 1, 2023, DHS has permitted E-Verify employers in good standing to use an alternative procedure that examines Form I-9 documents remotely — by video, fax, or email, with the employer retaining clear copies — instead of examining them in person. That option replaced the temporary COVID-19 flexibilities that ended August 30, 2023, and is only available to employers enrolled in E-Verify. E-Verify itself still requires photo matching for U.S. passports, passport cards, and Permanent Resident and Employment Authorization Cards presented as List A documents. Confirm you are working from the current edition of Form I-9, posted at uscis.gov/i-9, before your next hire — USCIS updates it periodically, and using an expired edition is itself a compliance problem.
08When this needs a lawyer
Does This Actually Need a Lawyer?
Not always. Routine enrollment, everyday data entry, and a straightforward TNC that an employee resolves on their own timeline are administrative — HR staff who have completed the free E-Verify tutorial can usually handle them without counsel.
Call an employment immigration attorney when: your company receives a Notice of Inspection or an ICE/HSI I-9 audit; you are unsure whether the FAR E-Verify clause applies to a specific federal or state contract; a TNC raises a citizenship-status question you do not know how to explain to the employee without risking a discrimination claim; or you are setting up E-Verify company-wide for the first time and want the procedure reviewed before you rely on it across every hire.
09Questions employers ask
Frequently Asked Questions
- Does a New York employer have to use E-Verify?
- Not by default. New York does not mandate E-Verify for most private employers. It becomes mandatory for federal contractors and subcontractors whose contracts carry the FAR E-Verify clause (contracts over $250,000 with a performance period of 120+ days, awarded after September 8, 2009), and for some employers on state or local government contracts. Employers who are not required to enroll may still do so voluntarily, but once enrolled must follow every E-Verify rule for all new hires — it cannot be used selectively.
- What happens after a Tentative Nonconfirmation (TNC)?
- The employer must promptly notify the employee and provide the Further Action Notice, then give the employee 8 federal government working days to contact SSA or DHS and resolve it. The employer cannot take adverse action — cannot terminate, reduce hours, or delay training — while resolution is pending. If the employee does not contest, or the agency confirms nonconfirmation, the case closes as a Final Nonconfirmation and the employer may then terminate based on that result.
- Can E-Verify be run before Form I-9 is complete?
- No. Form I-9 must be completed first — Section 1 by the employee on or before the first day of work, Section 2 by the employer within 3 business days of hire. E-Verify is run after I-9 is complete, using the same information, and the case must be created within 3 business days of the hire date. Running E-Verify before I-9 or before an offer is accepted is itself a program violation.
- What is the penalty for misusing E-Verify?
- Two separate exposure tracks. Program violations — late case creation, selective use, screening applicants before hire, failing to give TNC notice — can lead to suspension or termination from E-Verify and loss of federal contracts. Discrimination violations — requesting specific documents, rejecting valid ones, treating employees differently based on national origin or citizenship status — can draw a Department of Justice investigation, civil penalties, and back pay. The two overlap often: inconsistent E-Verify use is the most common trigger for a discrimination charge.
10Related resources
Related Compliance Resources
- I-9 Compliance GuideComplete guide to Form I-9 requirements and best practicesRead Guide
- ICE Audit Defense GuideHow to respond to ICE/HSI I-9 audits and inspectionsLearn More
- H-1B Visa RequirementsEmployer guide to sponsoring foreign workersView Guide
- Business Immigration Lawyer New YorkLegal counsel for employers on E-Verify, I-9, and foreign worker sponsorshipGet Legal Help
11Where we serve
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