“TNC Email Notifications” Enhancement in E-Verify Effective July 1, 2013

When USCIS came out with the draft revised Form I-9 last year, many wondered what USCIS planned to do with the email and phone number fields introduced in Section 1.  USCIS held a teleconference today and discussed some important points regarding the “TNC Email Notification” enhancement and answered one of our questions today.

USCIS will email employees in the event of a tentative nonconfirmation (TNC) from an E-Verify case, if the employee provided his/her email address in the revised Form I-9.  (As for the phone number, USCIS has no immediate plans for its use this time….)  Read on for my summary:

Collecting a New Employee’s Email Address

USCIS stressed that the employee’s email address field is an optional field on the Form I-9.  If the employee decides to provide an email address, he/she may indicate any email address, even a work email address.  Some employers expressed concerns about employees using work email addresses on the Form I-9 but USCIS instructed that employers may not restrict or instruct employees which email addresses to provide.  The employer must use the email address provided on the Form I-9 when initiating an E-Verify case, even if the email address on the Form I-9 is different than the email address the employee provided during the onboarding process.

If your organization prohibits the use of work email addresses for personal use, it may be worthwhile to visit this issue with your counsel to develop a policy that complies with this guidance and comports with your organization’s work policies.

If the employee indicates an email address in Section 1, then the employer must input this email address in that employee’s E-Verify case.

Warning Employees DHS May Email the Employee

Page 1 of the Form I-9 provides the following instructions for the e-mail field in Section 1:

E-mail Address and Telephone Number (Optional): You may provide your e-mail address and telephone number. Department of Homeland Security (DHS) may contact you if DHS learns of a potential mismatch between the information provided and the information in DHS or Social Security Administration (SSA) records. You may write “N/A” if you choose not to provide this information.

Employers could, if they wanted to, warn employees that the email address, if provided, might be used by DHS during the work eligibility verification process.

Under What Circumstances Will DHS Email Employees?

USCIS clarified that an email would be sent to an employee contingent on all three of the following factors being satisfied:

  • The employee provided a valid email address in Section 1 of Form I-9; and,
  • The employer is enrolled in E-Verify; and,
  • The employee received a tentative nonconfirmation (TNC).

TNCs occur when there is a mismatch between the data on the Form I-9 and the data in the E-Verify databases (from DHS and SSA).  The TNC Email Notifications enhancement is a concurrent way to inform employees of their TNC and helpful if employers forget to notify employees of a TNC.  Though, it’s worth emphasizing that employers are still required under the rules to notify employees of a TNC in addition to this email enhancement.

USCIS will send an email to employees only in these three (3) scenarios:

1. Initial Alert: When a TNC occurs, employees who have provided an email address will receive an automatic email notifying them of a TNC.  Below is a sample excerpt, provided by LawLogix, of what this automatic email to employees may contain:

Why you received this email Your employer participates in E-Verify, a program managed by the U.S. Department of Homeland Security (DHS) and the Social Security Administration (SSA). E-Verify compares the information you gave on Form I-9, Employment Eligibility Verification, with records available to DHS and SSA to verify that you are authorized to work in the United States. You received this email because E-Verify indicated that the information entered into E-Verify by your employer does not match records available to DHS and SSA. This is known as a Tentative Nonconfirmation or TNC. This does not mean that you gave incorrect information to your employer or that you are not authorized to work in the United States. Visit www.dhs.gov/E-Verify and click on ‘For Employees’ pages to learn about the reasons you may have received a TNC. What you should do If your employer has not spoken to you about the TNC, you should ask your employer for a copy of the Notice of Tentative Nonconfirmation (TNC Notice). Employers must promptly notify you in private of a TNC result and provide you with the TNC Notice. Employers must also allow you to contest (take action to try to resolve) a TNC and may not take adverse action against you because of the TNC or while you are contesting the TNC and your E-Verify case is pending. If you decide not to contest the TNC, your employer may terminate your employment. [Read the complete sample email here.]

2. Gentle Reminder: Employees have eight (8) federal working days to contest the TNC.  If the employee decides he/she will contest the TNC, but fails to take action within four (4) days, the employee will receive a reminder email.

3. Post-Determination Reminder: In certain TNC cases, some employees will be confirmed by DHS as work-authorized in the E-Verify system as part of their final determination.  After this final determination is made, USCIS will automatically email the employee, as a friendly reminder, to encourage him/her to proactively correct their data with SSA to prevent future TNCs from recurring.

At this time, employers will not be copied on any email correspondence to employees from DHS.

When Will TNC Email Notifications Go Into Effect?

The TNC Email Notifications enhancement is live in the E-Verify system beginning today, July 1, 2013.

Direct Access Users (employers who log into the system on the internet and manually input data directly) will be affected immediately.  The accompanying M-274, Memorandum of Understanding and instructional materials will be updated to include the TNC Email Notification enhancement.  This means that employers who receive a Form I-9 with an employee’s email address indicated in Section 1 are required to input this data in E-Verify effective immediately.

For Web Services Users (employers using a third-party agent or an electronic E-Verify software), the TNC Email Notifications enhancement will go into effect in the near future (likely in the next release). Your vendor will be notified by USCIS when the enhancement will go into effect.  USCIS declined to comment on how long of a grace period, if any, would be provided for web service users, to implement this new enhancement.  (Stay tuned….)

Using Self-Check in Advance of E-Verify Case

USCIS is also encouraging individuals to use Self-Check as a means to ensure they are work authorized independent of an employer initiating a case in E-Verify.   Employers may not condition employment on an individual providing a satisfactory outcome from Self-Check nor can Employers require employees to use Self-Check.  Self-Check is an entirely optional module for the public’s convenience.

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Questions or comments for USCIS?  Feel free to email e-verify@dhs.gov with “TNC Email” in your subject heading.  Comments for our blog?  Please feel free to leave them below.