E-Verify Requirements in Washington: Employer Obligations

The Immigration Reform and Control Act (IRCA), codified at 8 U.S.C. § 1324a and implemented through 8 CFR Part 274a, requires all U.S. employers to verify that employees are legally authorized to work in the United States. Employers must complete Form I-9 for every employee and examine documents establishing identity and work authorization. E-Verify is a voluntary federal program that allows employers to electronically verify the Social Security number and immigration status of newly hired employees against federal databases maintained by the Social Security Administration (SSA) and the Department of Homeland Security (DHS).

Federal law applies to employers of any size with one or more employee. The EEOC enforces anti-discrimination provisions related to document verification. The Department of Homeland Security's Immigration and Customs Enforcement (ICE) investigates I-9 violations. While E-Verify itself is optional under federal law (except for federal contractors), employers must still complete Form I-9 for all employees. Federal penalties for I-9 violations range from $110 to $1,100 per violation. Employers using E-Verify must follow system rules and cannot use results to discriminate based on national origin or citizenship status.

Washington State law is significantly more stringent than federal law. Under RCW 19.86.140, Washington mandates E-Verify use for all employers—not merely as an option but as a legal requirement. This makes Washington one of the strictest states on E-Verify compliance. The law applies to all private employers regardless of size; there is no exemption for small employers, unlike some other state regimes.

Washington requires E-Verify verification to occur within 3 business days of hire and before the employee begins work, whichever comes first. This compressed timeline is stricter than the federal I-9 requirement, which allows up to 3 business days after hire. Washington's law is enforced as an unfair business practice under the Washington Consumer Protection Act (RCW 19.86), giving the state Attorney General enforcement authority and allowing for civil damages and penalties.

Under Washington law, civil penalties for E-Verify non-compliance can reach $10,000 per violation. Additionally, the Department of Revenue may suspend or revoke a business license for repeated or willful violations of the E-Verify requirement. This creates potential loss of operating authority beyond federal penalties. Washington does not provide a safe harbor defense for good faith E-Verify use as robustly as federal law does. The state has also expanded the definition of who qualifies as an "employer" to ensure broad coverage, including some independent contractor relationships in certain industries.

Washington law contains limited exceptions to the E-Verify mandate. Employees hired before the employer enrolls in E-Verify may be verified retroactively if the employer enrolls in good faith, though penalties may still apply if enrollment is delayed unreasonably. Federal law's safe harbor provision—which protects employers who act with reasonable care in verifying documents—applies in Washington but does not excuse E-Verify non-use since Washington mandates the system specifically.

Employees with I-94 numbers issued by DHS and certain visa categories may have different verification procedures; however, E-Verify integration with federal databases is designed to handle these automatically. If E-Verify returns a tentative non-confirmation (TNC), the employee has the right to challenge the result through the system's dispute resolution process, and the employer must allow this without retaliation. Employees cannot be terminated solely on the basis of a TNC.

Independent contractors are generally not subject to E-Verify verification under federal law, though Washington's definition of "employer" may capture some contractor relationships. Self-employed individuals do not need to verify their own eligibility. Seasonal or temporary workers hired through staffing agencies may present gray areas; the agency may be responsible for verification rather than the end-user employer, but both parties should clarify responsibility in writing. Remote workers hired in Washington by out-of-state employers are generally subject to Washington's E-Verify requirement if the hiring employer has any nexus to the state.

Step 1: Document Your Hiring Process — Create and maintain records of all new hires, including names, dates of hire, Social Security numbers (in secure format), and I-9 documents. Keep E-Verify submission confirmations and any response notices (notices of verification, tentative non-confirmations, or final non-confirmations) for at least 3 years. Document the dates on which E-Verify verification was initiated and completed. Take screenshots or printed copies of the E-Verify result pages. Maintain these records separately from personnel files in a locked or password-protected location.

Step 2: Establish an Internal E-Verify Compliance Process — Designate an E-Verify Administrator or HR person responsible for timely submissions. Create a written policy requiring E-Verify submission within 3 business days of hire and before work begins (whichever is sooner). Establish a tracking system to monitor pending verifications and deadline compliance. When a tentative non-confirmation (TNC) is received, notify the employee in writing of their right to challenge the result and provide instructions for contacting DHS or SSA. Document that the employee was offered the opportunity to contest an incorrect result. Do not terminate or take adverse action against an employee solely because of a TNC; allow them time to resolve the issue.

Step 3: File with E-Verify — Enroll in E-Verify through the official government website at e-verify.gov if not already enrolled. Register with the program using your employer Identification Number (EIN) and create user accounts for authorized staff. For each new hire, log into E-Verify and enter the employee's information from their I-9 form (name, date of birth, Social Security number, immigration status, and work authorization category). Submit the verification request no later than 3 business days after hire and ideally before the employee's first day of work. Washington State's Department of Revenue and the Washington State Attorney General enforce E-Verify compliance; file complaints or concerns about violations with the Attorney General at atg.wa.gov or by calling 1-800-551-4636.

Step 4: Respond to E-Verify Results — E-Verify will return one of three results: (1) Verification Complete (green), meaning the employee's information matches federal records and employment is authorized; (2) Tentative Non-Confirmation (TNC, yellow), meaning the information does not match federal records and the employee must be notified and given 8 federal business days to contest; or (3) Final Non-Confirmation (red), meaning the employee is not authorized to work and employment cannot proceed or must terminate. Keep copies of all results. If a TNC is received, provide the employee with a Notice of Discrepancy and information on how to contact SSA or DHS to correct their records. Allow the employee reasonable time to dispute; do not fire them immediately. If a Final Non-Confirmation is issued and the employee does not correct the discrepancy within the dispute window, you may terminate employment for failure to verify work eligibility.

Step 5: Consult an Attorney — Engage an employment law attorney if you receive a notice of investigation from the Washington State Attorney General's office, the Department of Revenue, or if you face penalties for non-compliance. An attorney can review your E-Verify records and policies to ensure compliance and can represent you in any enforcement action. If you discover past non-compliance (employees hired without E-Verify verification), consult an attorney immediately about retroactive remediation and potential liability. If a former employee challenges a termination based on an E-Verify result, an attorney can help defend the termination or negotiate a settlement. For guidance on edge cases (contractors, remote workers, international employees), consult an immigration or employment law specialist.