E-Verify announces new 10-day requirement for taking action on Tentative Nonconfirmations
Today, the United States Citizenship and Immigration Services (USCIS) announced a new timing requirement for employers that receive a Tentative Nonconfirmation (TNC) during the E-Verify case creation process. Specifically, employers must now take action on a TNC within 10 federal government working days or risk potential compliance actions, up to and including termination of their E-Verify account. Starting on November 5, 2020, E-Verify will begin notifying employers not in compliance with this new rule to take action to meet the requirement.
The new announcement can be found here:
The E-Verify User Manual has also been modified here:
In explaining the justification for this new policy, the USCIS noted that “[h]aving TNC cases that remain open and without action for an extended period of time may suggest that [employers] are either not referring TNC cases to the Social Security Administration or Department of Homeland Security when the employee chooses to take action to resolve the TNC, or are not closing the case when an employee chooses not to take action to resolve the TNC.”
Put more simply – E-Verify, with all of its timing requirements, has long had a “loophole” of sorts that would permit an employer to initiate a case on-time and then fail to take any kind of action when a TNC is received. In an effort to close that loophole, the USCIS will now require employers to initiate some sort of action within 10 federal working days of receiving the TNC, and send remedial notices to those who do not.
HR managers reading this alert will undoubtedly have questions on how this policy will play out in real life – especially for unresolved TNCs that may have gone unnoticed during a period of time. While the policy is brand new (and we anticipate additional guidance from the USCIS will be forthcoming), we’re providing some general best practices below.
But first, a quick overview of the TNC process that has existed for some time.
The E-Verify Tentative Nonconfirmation Process
Let’s start with the basics – an E-Verify case begins when an employer submits a new hire’s I-9 information (biographic data, document info, etc.) to the E-Verify system in order to confirm employment eligibility in the U.S. If the information matches government records, the employee is eligible to work and everybody goes about their merry way.
If there’s a mismatch, the E-Verify system generates a TNC and the employee must be given the opportunity to take action (i.e., contest). Specifically, employers must notify the employee of the TNC as soon as possible and do the following:
- Give your employee a copy of the Further Action Notice, which explains the TNC in detail
- Review the Further Action Notice with your employee in private and have them confirm whether the information listed at the top is correct
- Assuming the information is correct, the employer processes the TNC and generates a referral for the employee to contact either the Social Security Administration (SSA) or Department of Homeland Security (DHS), or sometimes both. Generally (under pre-COVID times), the employee has 8 federal government working days to make contact.
The new 10-day requirement for taking action on a TNC
Pursuant to today’s announcement, the employer must notify the employee of a TNC result and complete the referral process as soon as possible within 10 federal government working days after E-Verify issued the TNC result. Within this 10-day period, the employee must decide whether to contest to resolve the TNC and notify the employer of the decision. If the employer does not receive an answer by the 10th federal government working day after E-Verify issued the TNC result, they are expected to close the case and (notably) terminate employment.
Below is a flowchart from the E-Verify website which depicts this new 10-day requirement:
Questions and Answers
Before I dive into this topic any further, two points of clarification based on questions we’ve already received.
(1) This is a new policy and not a reminder of an existing timeframe. Previously, E-Verify instructed employers to provide “a reasonable amount of time” to contest a TNC.” Now, they are seeking to hold employers to a 10-day requirement.
(2) This timeframe is different than the 8-day requirement for contacting the SSA or DHS once a case has been referred. The USCIS has confirmed that the 8-day requirement for contacting the SSA is still under an indefinite extension due to COVID-19. See our prior blog on this topic here.
What Employers Should Do Now – Best Practices
As mentioned earlier, the USCIS has indicated that they will begin notifying employers of unresolved TNCs starting on November 5, 2020. To avoid receiving these notifications, employers should act quickly to identify whether they have any outstanding TNC cases where no action has been taken within the E-Verify system. This would include cases that are in a status of Tenative Nonconfirmation, where the system is prompting for a decision on whether the employee will contest. Once these cases are identified, employers can determine whether the case can be continued or closed (e.g., if the employee is no longer working for the organization).
At the same time, employers should also update their internal processes, training materials, and documentation to ensure the 10-day rule is observed on new cases moving forward. As part of this process, employers should build in a “review step” to catch cases that may fall outside of the 10-day window. Employers using a well-designed electronic I-9 and E-Verify system may utilize reports and automated E-Verify reminders to facilitate prompt action and identification of TNCs that still need to be resolved.
As is often the case in the I-9/E-Verify world, employers may encounter scenarios where they are unable to take action on a TNC within the 10-day time window – especially for those who have long-dormant cases that may have gone unnoticed until now.
For example, if an employer does not take action on an existing unresolved TNC by November 5th and they receive an email from E-Verify, how should they proceed? May they still provide an employee with additional time? Under what circumstances would termination be advisable? And for new hires moving forward, what steps should an employer take if the employee suddenly goes on leave? Should they close the case and initiate a new one to “restart the clock”?
We have reached out to the USCIS in regards to these questions and will post responses as soon as we receive them. In the meantime, drop us a line if you have questions on this new policy or would like information on how an electronic I-9 and E-Verify solution can help.