E-Verify Requirements in Virginia: Employer Obligations

The federal E-Verify program, established under the Immigration Reform and Control Act (IRCA) of 1986 and codified at 8 U.S.C. § 1324a, requires all employers to verify employment eligibility through Form I-9 completion and document review. E-Verify is a voluntary federal system operated jointly by the Department of Homeland Security (DHS) and the Social Security Administration (SSA) that allows employers to electronically verify that employees are authorized to work in the United States.

Federal law at 8 U.S.C. § 1324a(b) mandates that federal contractors and subcontractors receiving contracts of $25,000 or more must use E-Verify for all newly hired employees within 3 days of hire. This requirement is enforced by the Department of Homeland Security and applies nationwide. Non-federal employers are not required by federal law to use E-Verify, though they must comply with I-9 verification requirements regardless.

Remmedies for federal I-9 violations include civil penalties ranging from $100 to $1,000 per violation, criminal penalties for knowing violations, and potential contract termination for federal contractors. The EEOC and DOL coordinate on employment authorization and discrimination issues, ensuring that E-Verify use does not become a pretext for discrimination based on national origin or immigration status.

Virginia Code § 40.1-2.2 imposes a state-level E-Verify mandate that is broader than the federal baseline. Under Virginia law, all public employers (state agencies, local governments, school boards, and other public bodies) must use E-Verify within 3 days of hire for all employees. Additionally, private employers who have contracts with the state of Virginia or local public bodies for services valued at $25,000 or more in a 12-month period must also use E-Verify.

Virgin's state mandate is stronger than federal law because it extends the E-Verify requirement to state and local government contractors, not just federal contractors. While federal law only requires E-Verify for federal contractors exceeding the $25,000 threshold, Virginia applies the same threshold to state contracts, significantly expanding the number of covered employers. This means a private company with a $25,000 Virginia state services contract must use E-Verify even though it would not be required to do so under federal law alone.

Under Virginia Code § 40.1-2.3, employers subject to the Virginia E-Verify mandate who fail to comply are subject to civil penalties. The statute provides that violations can result in penalties of up to $10,000 per violation, which is substantially higher than the federal I-9 penalty range. Virginia law also includes provisions for notice and opportunity to cure, though persistent non-compliance can lead to contract termination and debarment from state contracting.

Private employers in Virginia not subject to the state or federal E-Verify mandate may voluntarily participate in the federal E-Verify program. Virginia law does not prohibit voluntary E-Verify use and does not restrict private employer participation. All employers in Virginia, whether or not they use E-Verify, must complete Form I-9 and verify employment eligibility through authorized documents as required by federal law.

Private employers in Virginia who do not have state contracts exceeding $25,000 in a 12-month period are not required by Virginia law to use E-Verify, though they must still complete Form I-9 and verify work authorization through document review. However, if such a private employer receives a federal contract of $25,000 or more, the federal E-Verify requirement applies regardless of state law.

Employers who are already using the federal I-9 verification process in full compliance may still not be compliant with Virginia's E-Verify mandate if they have covered state contracts. The Virginia requirement is specifically for electronic verification through E-Verify, not satisfied by manual I-9 document review alone.

The E-Verify requirement does not apply to independent contractors or to employers who employ workers for fewer than 3 days, though once a worker is classified as an employee, E-Verify verification must be completed within 3 days. Small businesses and nonprofits are not exempt from the Virginia state mandate, though nonprofits may have different contracting relationships with the state.

Employers using E-Verify must be careful not to use the system as a tool for discrimination based on national origin, citizenship status, or immigration status. Courts and the EEOC have found that over-reliance on E-Verify or selective use based on appearance or accent can constitute national origin discrimination under Title VII of the Civil Rights Act. Virginia law and federal law both prohibit discrimination in the E-Verify verification process.

Employers with pre-existing I-9 verification records for current employees hired before the E-Verify mandate took effect may have different compliance timelines for retroactive verification, though Virginia law generally requires E-Verify verification for all employees once the employer becomes a covered entity with a state contract.

Step 1: Document E-Verify Compliance and Keep Records. Maintain Form I-9 for all employees, including a copy of the E-Verify confirmation notice (Case Number, date completed, and employee status determination). Save all E-Verify transaction records for at least 3 years from hire or 1 year from termination per federal law. Create a compliance checklist noting the date E-Verify verification was completed (within 3 days of hire) and whether any match issues or referrals to SSA or DHS occurred. Take screenshots of the E-Verify result confirmation and store them in a personnel file. This documentation is critical if audited by Virginia or federal authorities.

Step 2: Establish and Implement Internal Compliance Process. Designate an E-Verify administrator within your organization and ensure all hiring managers are trained on E-Verify requirements and deadlines. Create a hiring checklist that includes "Complete E-Verify within 3 days" as a mandatory step before employee works independently. If your company is newly subject to Virginia's E-Verify mandate (due to securing a state contract), conduct a compliance audit of employees hired after the mandate took effect. For employees hired before the mandate, verify the effective date and whether retroactive E-Verify is required by contract terms. Establish a process to flag employees with E-Verify referral cases and ensure HR follows up with the employee and DHS/SSA as required.

Step 3: File an E-Verify Case and Determine Filing Timeline. Go to www.uscis.gov/e-verify (federal portal) or access E-Verify through Virginia's state contracting system if the requirement arises from a Virginia contract. Create an account if you do not have one and enroll your company. When a new hire is made, complete Form I-9 first (within 3 days), then enter the employee's information into E-Verify on the same day or within 3 days of hire. Submit the Form I-9 completion information into the E-Verify system, including name, date of birth, SSN, and work authorization document type. If E-Verify returns a "Tentative Nonconfirmation" (TNC), you must notify the employee in writing and allow them to contest the result or file a referral with SSA or DHS. The deadline to resolve a TNC is 8 federal working days; failure to complete the process may result in employment termination or investigation.

Step 4: Understand the E-Verify Investigation Process and Timeline. If E-Verify returns a "Employment Authorized" confirmation, maintain the Case Number and confirmation notice in your records. If a TNC is issued, DHS or SSA has 10 days to investigate. You must provide the employee written notice of the TNC and their right to challenge it within the contest period. The employee has 8 federal working days to contest the result or file an appeal with SSA or DHS; you cannot terminate employment during this contest period unless you have independent grounds for termination. Once the contest is resolved or the contest period expires, E-Verify will issue a final determination (Employment Authorized, Employment Not Authorized, or Unable to Confirm). If the final determination is "Employment Not Authorized," you must terminate the employee's employment. Expect the investigation to take 1-2 weeks in most cases.

Step 5: Consult an Employment Attorney if Needed. If you receive a TNC for an employee you believe is authorized to work, consult an immigration attorney or employment attorney experienced in E-Verify disputes before taking termination action. If you are audited by DHS or Virginia for E-Verify compliance, retain an employment law attorney immediately to review your documentation and representation in any interviews. If you become subject to a Virginia state contract and have retroactive E-Verify compliance obligations, consult an employment attorney to understand the scope and timeline of compliance. If an employee claims E-Verify was used discriminatorily (e.g., E-Verify was not used for all employees or was applied selectively), consult an employment attorney experienced in discrimination claims. An attorney can also advise on whether your E-Verify use complies with federal anti-discrimination law and Virginia Code § 40.1-2.2.