In October of 2020, the United States Citizenship and Immigration Services (USCIS) announced it would be enforcing the existing rule for employers to take action within ten federal government working days of receiving a Tentative Nonconfirmation (TNC) for an employee. Prior to this announcement, USCIS guidance urged employers to generally take action as soon as possible upon receipt of a TNC and was not specific. If you are currently enrolled in E-Verify, you have likely received one of these E-Verify e-mail notices by now, which can be quite startling. This communication is a gentle reminder of the new focus on enforcement and the employers wake up call to take intentional action.
The October announcement has many employers wondering why the sudden increase in enforcement. Essentially, USCIS was seeing a large number of open TNC cases, which likely indicated that:
- E-Verify users are not referring cases to government agencies when an employee contests to resolve a TNC
- E-Verify users are not closing a case if an employee chooses not to contest the TNC
The bottom line here is that when an E-Verify user fails to take their responsibilities for E-Verify actions they are at risk of receiving a violation which can negatively impact their compliance. In some cases it could even be possible that the employer’s E-Verify account could be terminated, rendering the business unable to operate.
Employers using E-Verify have the duty of care to ensure those in the organization who are responsible for this oversight truly understand the requirements of the program, grounds for TNCs, and how to resolve these E-Verify notices within the ten-day deadline in order to stay compliant. Completing the TNC process strengthens E-Verify program and helps ensure employers close E-Verify cases according to program requirements. Unfamiliar with E-Verify? See more about the program below.
What Is an E-Verify Tentative Nonconfirmation (TNC)?
A TNC typically means that the information input into the E-Verify system by an employer does not match government agency records from the Department of Homeland Security (DHS) or the Social Security Administration (SSA).
An employer could receive a TNC notification from DHS or SSA for one or more of the following reasons:
- Information not entered correctly by the employee or employer, including transposed or mismatched numbers, incorrect dates or misspelling of employee’s first or last name
- Unreported name changes by the employee
- Immigration or citizenship status change
- Unverifiable passport or identity information such as a driver’s license or state ID card
- Photo match issue
- DHS record such as an Alien number, I-94 number and/or foreign passport number is incorrect
Actions Required for a TNC
It is worth noting that the ten-day window is not dedicated to resolving the TNC issue, rather it simply mandates that an employer either declare in the E-Verify system that an employee is contesting the TNC or otherwise close the individual’s case after then ten-day period has passed if they have received no decision from the employee.
According to E-Verify’s website, the proper steps to take upon receiving notification of a TNC are:
- Further Action Notice. The employer must alert the employee in question of the TNC via a printed copy of the Further Action Notice. This notice gives the employer information about how to properly notify an employee about a TNC and additional information about the TNC itself.
- Employee Decision. The employee must make a decision about contesting the TNC within the ten federal government working day period as properly indicated on the Further Action Notice. If an employer does not receive a decision by the end of the tenth day or if the employee confirms they will NOT contest the TNC, the employer may close that individual’s E-Verify case and end the employee’s employment.
- Employee Contest. If an employee wishes to contest a TNC, the employer should update E-Verify with a referral date which sets the ten-day window and provides a specific date by which the employee must visit either a Department of Homeland Security or a Social Security Administration office. The type of TNC declared will dictate which type of office the employee should visit. It is critical to note that during the TNC period where the employee has confirmed that they will take the requisite action on the TNC, the employer may NOT take any adverse action (terminate, suspend, withhold or lower pay, etc).
- Visit DHS or SSA Office. The employee promptly acts to resolve the mismatch issue. An employee should visit the DHS or SSA as soon as possible. If the employee does not act to resolve the TNC issue within ten working days of that employee referral, E-Verify may change the employee’s case status to E-Verify Final Nonconfirmation, after which an employer may terminate the employee.
- Update E-Verify case. As appropriate, after a quick compare against other government databases, the employee’s E-Verify record will be electronically updated with a final conclusion either after a mismatch is resolved or no action is taken.
- Employer closes E-Verify case. Whether it is due to not receiving a decision about contesting the TNC from an employee in the given time period or because E-Verify issued a Final Nonconfirmation, an employer will need to close the E-Verify case.
E-Verify is an internet-based program available to employers to confirm the eligibility of their employees to work within the United States.
The information input into E-Verify are the same personal details collected on the Form I-9, which employees are federally mandated to complete on the first day of employment. Once entered the data is compared against records from government agencies to ensure identity and employment eligibility of an employee. Here is a comparison between Form I-9 and E-Verify:
Mandatory for all new hires
Does NOT require the employee to include a Social Security number
Does not require a photo on the identify documents (List B of the Form I-9)
Must be used to reverify expired employment authorization
Is voluntary for most employers*
Requires the employee to include a Social Security number
Requires a photo on identity documents (List B)
MAY NOT be used to reverify expired employment authorization
*E-Verify enrollment is voluntary for an employer unless they fall into one of the following categories:
- The employer has federal contracts or subcontracts containing the Federal Acquisition Regulation (FAR) E-Verify clause
- The employer has operation in a state where legislation requires it
- The employer has been provided an official legal ruling
More information about the E-Verify program can be found on the E-Verify website.