On Jul 28 2010 by Klasko Immigration

USCIS Clarifies Date of Hire for E-Verify and Three Day Rule

Before an employer can create a case in E-Verify, both the employer and employee must complete the Employment Eligibility Verification form, or Form I-9. All U.S. employers, regardless of whether they participate in E-Verify, must complete Form I-9 no later than 3 business days after the employee begins work for pay. This is commonly known as the “three day rule.”  According to the Department of Homeland Security (DHS), an E-Verify case is considered late if the employer creates it later than the third business day after the employee first started work for pay. 

Under the recently redesigned E-Verify system, if the case is created late, the program will prompt the employer to explain the reason for the untimely case creation.  The reasons provided are:

  • Awaiting Social Security Number;
  • Technical Problems;
  • Audit Revealed that New Hire Was Not Run;
  • Federal Contractor with FAR E-Verify Clause verifying an existing employee; or
  • Other.

DHS has stated that it added this screen because recent evaluations of E-Verify found that employers often created cases late.  This partly stems from confusion over how to determine the “date of hire” for the employee.  In a significant change, DHS has stated that “the first day the employee starts work for pay is not included in the three business day calculation.”  Therefore, if the employee starts work for pay on Monday, the third business day after the employee started work for pay is Thursday (assuming all days were business days for the employer).  DHS has created the following chart as an example:

Determining the E-Verify Hire Date
If you create the case in E-Verify:Then the E-Verify hire date is:
Before the employee starts work for payThe date you create the case in E-Verify
On or after the employee starts work for payThe date the employee started work for pay

This may come as a surprise to many employers who previously thought that the day of hire should be counted as count Day 1, then Day 2 and then Day 3. DHS, however, now clarified that employers have three days after the date of hire to create a case in E-Verify.  Employers who have questions regarding when to create a case in E-Verify should contact their Klasko Law attorney.