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E-Verify provides updates on frozen TNCs during the COVID-19 pandemic

If you ask an HR representative to describe their least favorite aspect of the federal government’s E-Verify system, the clear winner has to be the dreaded TNC (cue scary music). If you’re not fluent in government acronyms, TNC stands for “tentative nonconfirmation” one of a few possible responses that you might receive when verifying your new hire’s eligibility to work in the US through the E-Verify system.

A TNC can happen for many reasons including unreported name changes; incorrect name, social security number, or dates of birth; and citizenship mismatches (to name just a few).

But regardless of the reason, a TNC means extra work for the HR team. Per the E-Verify program rules, an employer needs to verify that the I-9 was correct, meet in private with the employee to explain the TNC, provide the employee with an opportunity to take action, obtain a signature from the employee on the Further Action Notice, and then initiate a referral. All the while, HR needs to be mindful of strict E-Verify deadlines and paperwork requirements.

What’s the best part about a TNC? When it’s finally resolved, preferably with an employment authorized result. But what if I were tell you about a new “COVID-19” version of the TNC that, unlike its pre-pandemic brethren, never fully resolves itself, remaining in frozen in time? Would that, after all, make you scream in faux horror?

TNCs in the Age of COVID

A time-frozen TNC sounds might sound like a cruel joke on employers, but it’s actually an accommodation from the government. Last year, as the COVID-19 pandemic swept across the US, the United States Citizenship and Immigration Services (USCIS) announced that E-Verify was extending the timeframe for employees to take action to resolve Social Security Administration (SSA) TNCs due to SSA office closures to the public.

Under normal circumstances, an employee contesting a TNC must contact the government office within 8 federal government working days or risk getting a Final Nonconfirmation and loss of employment. Employees with SSA TNCs need to visit a local SSA office, whereas DHS TNCs can usually be resolved over the phone (and thus no extension of time has been granted for these).

Fast forward to today, and the SSA offices are still generally closed to the public, except in certain limited critical situations where an individual is having issues with their social security benefits. As a result, many employers have a growing queue of referred TNC cases with the SSA office that are essentially “frozen” in time, and it’s anyone’s guess as to when those cases will start to thaw out (i.e., when SSA offices will be open to the public again). But in the meantime, we do have some news….

E-Verify provides update on some referred TNCs

Last week, E-Verify announced that the agency will begin updating some of these frozen referred SSA TNCs with final responses – meaning that employers will start to see some updates on these long-dormant cases. Once an E-Verify case receives an update, employers are required to close the case, unless the result is “employment authorized,” in which case, E-Verify will do it for you automatically.

Now you might be wondering what types of “updates” E-Verify will be making to these cases, especially considering that in most instances, the employees have not yet visited an SSA office or taken any action. I asked an E-Verify representative if they could shed some light on this issue and was informed that they are only providing updates on cases where DHS has independently determined that the employee is not employment authorized, even though SSA has not been able to respond to their part of the TNC.

While the agency does not like sharing E-Verify’s secret sauce, it is generally known and understood that E-Verify “works” by comparing your employee’s Form I-9 data with a variety of databases, some from SSA and some from DHS. And therefore, it is possible for an employee to receive a “dual TNC” that must be resolved by both agencies.

So what does this all mean for an employer with a stack of referred SSA TNCs that are aging by the minute? Likely it means that only a small subset of your TNC backlog will be updated in the coming days and weeks – i.e., only those cases where an employee had another mismatch with DHS that could not be resolved.

The vast majority of referred SSA TNCs will likely stay frozen until the SSA offices open to the general public or the SSA modifies its policies for in-person appointments.

Employer Tips

Until that day arrives, employers need to keep a few important things in mind regarding E-Verify SSA TNCs:

(1) Employers are prohibited from taking any adverse action against an employee due solely to their receipt of a TNC that cannot yet be resolved. In other words, you cannot simply terminate employment, withhold training, or take any other action because you feel the extended TNC timeframe is “taking too long” or you just want to reduce your E-Verify TNC queue.

(2) While E-Verify has extended the timeframe for employees with referred SSA TNCs, employers must still ensure they meet the other timeframes associated with E-Verify TNC processing, including the requirement to notify the employee and confirm whether they will take action within 10 federal government working days after issuance of the TNC result.

(3) Within the E-Verify system, there is no way for an employer to close, cancel, or otherwise take any kind of action on a case with a referred SSA TNC that has yet to be resolved by the agencies. This means that if your employee separates from your organization (for other reasons), the E-Verify case with the referred TNC will remain open, regardless of your employee’s status. And if you rehire that individual in the near future, you may actually be prohibited from submitting a new E-Verify case for them (based on E-Verify’s revised duplicate case check process).

And that’s it for now! Stay tuned for more updates on the frozen TNCs by subscribing to this blog. And if you have questions, please drop us a line.

Lastly, if you want to learn more about the Guardian Electronic I-9 and E-Verify system which simplifies and standardizes E-Verify compliance, you can contact us here.

About John Fay

John Fay is an immigration attorney and technologist with a deep applied knowledge of I-9 compliance and E-Verify rules and procedures. During his career, John has advised human resource managers and executives on a wide variety of corporate immigration compliance issues, including the implementation of electronic I-9 systems. In his current role, John serves as President at the LawLogix division of Hyland Software, Inc., where he oversees all aspects of the division’s operations and provides strategic leadership and direction in the development and support of Form I-9, E-Verify, and immigration case management software solutions.

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