E-Verify Requirements in Indiana: Employer Obligations

Federal law under 8 U.S.C. § 1324a requires all U.S. employers to verify the identity and work authorization of every newly hired employee using Form I-9 within three days of employment. The Immigration Reform and Control Act (IRCA) prohibits employers from knowingly hiring, recruiting, or referring undocumented workers. Employers must examine documents such as a passport, driver's license, or employment authorization document presented by the employee.

E-Verify is a voluntary federal system administered by U.S. Citizenship and Immigration Services (USCIS) and the Department of Homeland Security (DHS) that allows employers to electronically verify the employment eligibility of new hires by comparing information from Form I-9 against Social Security Administration (SSA) and DHS records. Federal contractors and subcontractors with contracts exceeding $3,500 are mandated to use E-Verify under Executive Order 12989 as amended.

Violations of the I-9 requirement result in civil penalties ranging from $110 to $1,100 per violation, or up to $16,000 per violation for knowing employment of undocumented workers. The Department of Homeland Security Immigration and Customs Enforcement (ICE) enforces these provisions. All employers with one or more employee are covered, regardless of size.

Indiana Code § 22-5-1.7 establishes that all state and local public employers in Indiana must use the E-Verify system to verify the work authorization of all newly hired employees. This state requirement is stronger than the federal baseline in that it mandates E-Verify participation for public employers, whereas federally E-Verify is primarily required only for federal contractors and subcontractors.

Private employers in Indiana are not mandated by state statute to use E-Verify but must fully comply with federal I-9 requirements under 8 U.S.C. § 1324a. However, private employers who are federal contractors or subcontractors must use E-Verify pursuant to federal Executive Order 12989. Indiana does not provide additional state-level penalties beyond federal IRCA penalties for hiring undocumented workers; the state enforces federal requirements through the public employer mandate.

Covered employers under the state mandate include all state agencies, departments, boards, commissions, and local government entities such as cities, counties, and school corporations. The statute applies to all newly hired employees regardless of citizenship status or national origin, and verification must be completed within the required federal timeframe (within three days of hire).

Indiana's approach differs from federal law by explicitly requiring public sector participation in E-Verify, whereas the federal mandate targets federal contractors and private employers knowingly hiring undocumented workers. The state does not create additional remedies beyond federal civil and criminal penalties, but state agencies that fail to comply may face administrative enforcement through the Indiana Department of Personnel (now part of the state human resources function). Indiana does not impose state-specific fines on private employers for E-Verify non-compliance because private employers are not subject to the state mandate.

E-Verify requirements in Indiana contain several important exceptions and limitations. Employees hired before the effective date of a public employer's E-Verify mandate are not required to be retroactively verified if they were properly I-9 verified at the time of hire. However, public employers must use E-Verify prospectively for all new hires after the mandate takes effect.

Employees with certain prior work authorizations may have extended verification periods; for example, those on valid temporary visas (H-1B, L-1, F-1 with OPT) are deemed work-authorized for the duration shown in their visa documentation. Employees who receive a Tentative Non-Confirmation (TNC) from E-Verify have the right to contest the result and request manual review by SSA or DHS; the employee's work authorization status is not automatically terminated during this period.

Small businesses and nonprofits are not exempt from I-9 requirements under federal law, though E-Verify participation is mandatory only for federal contractors. Employees involved in collective bargaining agreements are still subject to I-9 verification; union membership does not waive the requirement. Religious organizations may have limited exemptions from certain employment discrimination laws but not from I-9 and E-Verify verification requirements.

Public employers in Indiana that fail to use E-Verify may face administrative penalties and reduced federal funding eligibility, though Indiana does not publish specific fine amounts for non-compliance. Employers with valid Form I-9 documentation completed in good faith but containing minor document discrepancies are generally protected from liability if they exercised reasonable care, though the documents must still be properly examined. Employers may not use E-Verify as a substitute for the required Form I-9 document examination process.

Step 1: Document Everything — Keep detailed records of when E-Verify was initiated for each employee, the case number assigned by E-Verify, the date of verification, and any notices or TNC (Tentative Non-Confirmation) documents received. Public employers should maintain a log of all new hires and their E-Verify status. Retain copies of Form I-9 and supporting identity documents for at least three years (or one year after employment termination, whichever is longer) in a secure location accessible only to authorized personnel.

Step 2: Establish an Internal Compliance Process — Designate a specific employee or department to manage E-Verify enrollment and submissions. For public employers, ensure all supervisors and hiring managers understand the requirement and timeline. Create a written policy documenting the E-Verify process, including who is responsible for submission, how to handle TNCs, and procedures for contesting E-Verify results. Train all personnel involved in hiring on federal I-9 requirements and state mandate specifics. Document that training has been completed.

Step 3: File with the Appropriate Agency — Public employers in Indiana must enroll in E-Verify through the federal portal at www.uscis.gov/e-verify. Registration is free and requires company information, authorized representative details, and agreement to comply with E-Verify program rules. Submit new hire information to E-Verify within three days of the hire date; the system provides immediate or same-day results in most cases. Keep the E-Verify case number and result documentation for each employee's file. If you are a private employer and a federal contractor, follow the same E-Verify enrollment process; non-federal private employers should maintain compliant I-9 documentation even if not using E-Verify.

Step 4: Understand the Investigation and TNC Process — When you submit an employee's information to E-Verify, the system compares data against SSA and DHS records. Results are returned as "Employment Authorized," "Tentative Non-Confirmation" (TNC), or "No-Match." If E-Verify returns a TNC, do not terminate the employee immediately; federal law requires you to notify the employee in writing and allow them ten days (federal requirement) to contest the result through SSA or DHS. During the contest period, the employee retains work authorization. If the employee does not contest within ten days or the contest is denied, then employment authorization cannot be verified and the employee may not continue work. The DHS or SSA investigation process typically takes 10 to 14 days for a federal agency response to a contest.

Step 5: Consult an Attorney When Necessary — Contact an employment law attorney licensed in Indiana immediately if you receive a Department of Homeland Security notice of inspection or audit of your I-9 records. If an employee challenges an E-Verify result and you need guidance on proper TNC handling, seek legal counsel to ensure compliance. If you become aware that an employee may be undocumented, do not unilaterally terminate; consult an attorney on proper documentation and severance procedures to avoid potential discrimination claims under Title VII or the Immigration-Related Employment Discrimination provision of 8 U.S.C. § 1324b. An attorney can also review your E-Verify policies to ensure public employers are compliant with Indiana Code § 22-5-1.7 and that private employers understand their federal contractor obligations.