Q : When may an employer initiate a query under E-Verify?
The earliest the employer may initiate a query is after an individual accepts an offer of employment and after the employee and employer complete the Form I-9. The employer must initiate the query no later than the end of three business days after the new hire’s actual start date.
Although an employer may initiate the query before a new hire’s actual start date, it may not pre-screen applicants and may not delay training or an actual start date based upon a tentative non-confirmation or a delay in the receipt of a confirmation of employment authorization. In short, an employee should not face any adverse employment consequences based upon an employer’s use of E-Verify unless a query results in a final nonconfirmation.
For this reason, if the query returns an employment authorization response, an employer cannot speed up the employee’s agreed upon start-date, as that would be disparate treatment based upon E-Verify results of this employee compared to another who may have received a tentative non-confirmation. For example, Company X always assigns a start-date to new employees that are two weeks after the employee has submitted an approved drug test. After the employee has accepted a job with Company X, and after the employee and Company X complete the Form I-9, the company can initiate the E-Verify query. However, the company cannot speed up or delay the employee’s start-date based upon the results of the query (unless the program issues a final non-confirmation, in which case the employee should not be further employed).
Employers must verify employees in a non-discriminatory manner, and may not schedule the timing of queries based upon the new hire’s national origin, citizenship status, race, or other prohibited characteristic.