U.S. Citizenship and Immigration Services has announced that as of January 1, 2015, in accordance with the National Archives and Records Administration records retention and disposal schedule, it will begin permanently disposing E-Verify records that are more than 10 years old, including all activity recorded in an employer’s E-Verify profile.  Employers that have been participating in the program since December 31, 2004, should take measures to archive their data.

The Internet-based E-Verify system allows businesses to determine whether the information contained upon a new hire’s employment verification documents matches the information maintained by the Immigration Service and Social Security Administration.  The employer enters the employee’s information from the federal Form I-9 into E-Verify and submits the information to create a case.

E-Verify compares the information to records available to the U.S. Department of Homeland Security, including:

• U.S. passport and visa information

• Immigration and naturalization records

• State -issued driver’s licenses and identity document information

• Social Security Administration records.

E-Verify sometimes displays a photo for the employer to compare to that on the employee’s document to ensure the document photo has not been altered.  If the information matches, the case will receive an Employment Authorized result.  If the information does not match, the case will receive a Tentative Non-confirmation (TNC) result.  To shield itself from potential exposure to allegations of continuing to employ and unauthorized foreign worker, the employer must notify the employee of the TNC and monitor the clearance process through final resolution. 

In addition, E-Verify’s Monitoring and Compliance Branch monitors usage of E-Verify to detect, deter, and reduce misuse, abuse, and fraud—essentially, data-mining an employer’s E-Verify feed.  If the government monitoring determines further investigation is warranted, pursuant to a Memorandum of Understanding, E-Verify will refer the employer to Immigration and Customs Enforcement for a worksite I-9 audit—which may result in administrative and criminal sanctions. 

An employer under investigation can claim as an affirmative defense that it successfully received a WORK AUTHORIZED result for a new hire for one who is now identified as UNAUTHORIZED/SUSPECT. Once USCIS has disposed of the E-Verify records, the employer has only its own archives to support its defense.

Employer should consider seeking guidance from counsel on downloading the Historical Records from E-Verify planning on doing so at the end of each calendar year.  USCIS may retain E-Verify records associated with an ongoing investigation, prosecution, or litigation; employers should prepare for that possibility.