What Employers Should Do After E-Verify Issues a Tentative Nonconfirmation for an Employee

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The first time an employer using the E-Verify system receives a Tentative Nonconfirmation (TNC) can be a shock. By way of background, E-Verify compares information from an employee's Form I-9, Employment Eligibility Verification, against data in the files of the U.S. Department of Homeland Security (DHS) and the Social Security Administration in order to check whether the employee is eligible to work in the United States. When E-Verify issues a TNC, it means that the government was not able to confirm that the employee is authorized to work based on the information submitted. It does not necessarily mean that the employee lacks work authorization, only that the government needs more information to make a final determination.

If you are an employer in this situation, don't panic, and don't suspend the employee. Here's what you should do. First, check to confirm that you entered all of the employee’s data correctly. If the query contains mistakes, you can terminate the query as invalid, correct the mistakes, and resubmit the query.

Assuming that you did submit the E-Verify query properly, you should print the TNC Notice from the E-Verify system. This is a document that explains the TNC to the employee and provides the employee with options: to contest the TNC or not to contest.

If the Employee Contests the TNC

If the employee contests, he or she is given an opportunity to contact the government to answer its questions and, depending on the facts of the situation, to provide additional documentation. An employee who chooses to contest should sign and date the TNC Notice (as should you, the employer).

Next, you should indicate in the E-Verify system that the employee chose to contest. At that point, a Referral Letter will be generated, which you must provide to the employee. The Referral Letter gives the employee instructions for how to contact the government to resolve the discrepancy. It provides contact information and a deadline; the employee must contact the government within eight government work days.

While the employee works to resolve the matter, he or she must be allowed to continue to work. No adverse action may be taken against an employee based on the E-Verify TNC. Note that you must also refrain from asking the employee to provide updates to you during the TNC process. (Do not ask the employee to tell you once he or she has spoken to the government.) You should access the E-Verify system daily for updates.

Ultimately, the E-Verify query’s status will change to one of the following:

Employment Authorized (meaning that you can close the query and continue to employ the individual).
No Show (meaning that the employee failed to contact the government within the provided timeframe equivalent to a Final Nonconfirmation).
Final Nonconfirmation (meaning that the government holds that the individual is not authorized to work).
Review and update data/resubmit (meaning that you must meet with the employee to update your I-9, then submit a new E-Verify query).

If the Employee Does Not Contest or Receives a Final Nonconfirmation

If the employee does not contest the TNC, or if the query ultimately results in a “Final Nonconfirmation,” you must terminate the worker’s employment or face possible fines and penalties for knowingly continuing to employ an unauthorized worker. Continuing to employ someone after a “Final Nonconfirmation” or after he opts not to contest a TNC leads to a presumption that you are knowingly employing an unauthorized worker.

Closing the Query

Regardless of the final outcome, you must close every case in the E-Verify system.

For “Employment Authorized” queries, you may simply close the cases, indicating that you continue to employ (or not to employ) the individuals as appropriate. For “Final Nonconfirmation” queries, you must indicate whether you continue to employ the workers. Remember that failure to notify the government that you are continuing to employ someone despite a Final Nonconfirmation may result in a fine and that continuing to employ the individual (even if you notify the government) may result in charges that you are knowingly continuing to employ an unauthorized worker.

Once you have handled a few TNCs, the process will seem much simpler. Until then, be sure to follow these instructions as well as those provided in the E-Verify system to ensure that you properly handle the situation.