On the morning of February 14, 2024, several clients reached out after encountering issues with the photo matching tool in E-Verify. They reported discrepancies where the photos transmitted by E-Verify did not align with the photos on the employees' documents. It became increasingly clear that E-Verify was not rendering the correct photos from the government's databases. Instead, random photos were appearing on the photo-match screen. We quickly investigated, reaching out to several electronic I-9 vendors, and clients, to assess the scope of the issue. After confirming that the issue was widespread, we informed U.S. Citizenship and Immigration Service (USCIS). Fortunately, the agency was able to quickly resolve the problem.
How to Handle Affected Photo Match Cases:
Cases with erroneous photos should be closed, and a new E-Verify submissions should be made to ensure the correct images are displayed in order to complete the photo match process.
Employers utilizing electronic I-9 systems are encouraged to closely collaborate with their vendors to understand the resubmission process and identify any necessary actions on their part. Moreover, employers should verify that cases did not mistakenly receive a Tentative Nonconfirmation (TNC) based on an erroneous photo match.
What Is E-Verify?
E-Verify, established under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), is an online platform enabling employers to check the work eligibility of their employees electronically. It does not replace the Form I-9.
E-Verify requires employers to input details from an employee's Form I-9, into the system. This data is then digitally matched against records held by the U.S. Department of Homeland Security (DHS) and the Social Security Administration (SSA), with responses typically provided in seconds to confirm whether the employee is authorized to work or if further steps are necessary to resolve the case.
The program is jointly managed by the SSA and USCIS. USCIS plays a pivotal role in ensuring adherence to U.S. immigration laws by offering support and training for the E-Verify program, assisting users, conducting outreach activities, and pioneering technological advancements for verifying employment eligibility. E-Verify is voluntary unless mandated by the E-VerifyFederal Contractor Ruleor individual state regulations.1
What is the Photo-Matching Tool?
When using E-Verify, the system will guide users to perform a photo comparison process. This involves checking certain documents provided by the employee against a corresponding photo shown during the E-Verify case creation. This step is crucial for verifying that the document presented by the employee aligns with the data accessible to the DHS.
There are four specific List A documents that activate the photo matching feature: 1. the U.S. passport, 2. the passport card, 3. the Permanent Resident Card (also known as Form I-551), and 4. the Employment Authorization Document (Form I-766). Upon the presentation of any of these documents by an employee, employers are required to make copies of both sides of the document (for a U.S. passport, this means copying the Passport ID page and the Passport Barcode page) and keep these copies with the employee's Form I-9. If the details on the employee's Form I-9 match with DHS records, E-Verify will display a photo from the document that was presented.
Employers must compare the photo E-Verify displays against the actual document's photo or a photocopy of it. Employers should not use the E-Verify photo to compare against the employee themselves. That comparison should have already been conducted during the Form I-9 verification process, before initiating the E-Verify case. The aim is to confirm the photos are "reasonably identical" with allowances for minor differences due to the document's condition or variations in monitor quality.
It's important to note that E-Verify photos include a watermark to deter misuse. A genuine document provided by the employee should not have this watermark. However, the absence of a watermark in the employee's document photo does not discredit its authenticity.
The Seyfarth Immigration Compliance and Enforcement team regularly trains companies in E-Verify protocols, develops policies to ensure E-Verify compliance anti-discriminatory processes, and audits current systems in an effort to minimize liability and recommend improvements. We also focus on the interplay between electronic systems and E-Verify. With increasing information sharing between government agencies, it is more important than ever to ensure that those responsible for managing the E-Verify process understand the timelines involved, the process, and the need to treat all employees fairly. Please contact the author at Dlurie@seyfarth.com for more information.
Footnote
1 For more information on state E-Verify regulations, current Seyfarth clients may reach out to Dlurie@seyfarth.com for information related to our 50 State E-Verify Mandate survey.
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.
