Recent Business of Law Guest Blogger at the National Law Review, John Fay of LawLogix Group, Inc. provides a nice walk-through of what employers can expect when they receive a mismatch or tentative nonconfirmation (TNC) through the e-verify system. 
As an employer, there’s a certain amount of trepidation that comes with using the E-Verify system. While roughly 97% of all employees are instantly (or shortly thereafter) confirmed as work authorized, it’s the potential 3% which receive a mismatch or tentantive nonconfirmation (TNC) that keep us up at night. Was there a mistake in the information that we submitted or perhaps a mistake with the SSA or DHS database? Or what if the employee is unauthorized to work? When do I have to terminate him? Processing a TNC requires employer guidance, employee action, and often, lots of patience. The most important thing to remember is that a TNC does not mean that your employee is unauthorized to work. It’s just the first step in an E-Verify dance with government systems. Sounds like fun, right?
Process Overview
First, there are many perfectly legitimate reasons for a TNC, and your role as the employer is to communicate that fact with your employee. For example, your employee could receive a Social Security mismatch because of the following:
- Name, SSN or date of birth is incorrect in SSA database
- Employee failed to report a name change to SSA (married name, perhaps?)
- USCIS immigration status was not updated with SSA
You might also receive a DHS TNC because of the following:
- Photo ID of green card, EAD , or US passport (starting September 26th) does not match DHS records (this is a comparison you would perform manually when prompted)
- Information was not updated in DHS records
- Citizenship or immigration status has recently changed
- Name, alien number, and/or I-94 admission number were incorrect in DHS database
Regardless of the reason, you must first notify the employee in private of the TNC case result by printing the TNC Notice (to be signed) which is automatically generated by the E-Verify system. This letter explains all of the possible reasons why the TNC may have occurred and instructs the employee to review their information to make sure it was correct. Assuming it was, the employee then has 2 choices: CONTEST or NOT CONTEST. If the employee chooses to contest, then you must initiate a referral (in the E-Verify system) and provide them with a TNC Referral Letter (to be signed) that is automatically generated. This letter instructs the employee to contact the appropriate government agency (SSA or DHS) within 8 federal government work days to resolve the case. If there was a photo mismatch, you will also be instructed to send a copy to E-Verify. Alternatively, if the employee chooses not to contest, you may terminate employment and close the case.
The Waiting Game
Assuming that your employee has contested and you have properly referred them, the waiting game begins. E-Verify instructs employers that they will provide a case update (in the system) within 10 federal government working days. Employers using the web interface will need to check the system periodically, whereas employers using electronic I-9 systems can see updates automatically on their dashboard. Regardless of how you check, remember that you may not ask the employee for additional evidence of confirmation that SSA or DHS resolved the case. Doing so might be viewed as discriminatory. On the other hand, you should be diligent in checking on the case to see if there are updates. I did say this was a dance didn’t I?
Occasionally, the SSA or DHS may need more time to resolve a TNC – this could happen for a variety of reasons. Local SSA offices may be over-burdened with their core tasks (application for SSA benefits) or the employee may not have the documentation needed by SSA to support a change in their records. These record requests can add weeks to the process, and needless gray hairs to the worried HR representative. Regardless, the rules make it clear that you may not terminate, suspend, delay training, withhold or lower pay, or take any other adverse action against an employee based on the employee’s decision to contest a TNC or while the case is still pending with SSA.
The End Game
If all goes well, SSA or DHS will update its records and the employee’s case in E-Verify to indicate “Employment Authorized.” Occasionally, SSA may require the employer, employee or the U.S. Department of Homeland Security (DHS) to take additional action before a final case result can be issued. In these cases, SSA will update the employee’s case with a different message. Once the employee has received a final case status, such as “Employment Authorized” or “SSA FNC,” the employer must close the case in E-Verify. If the employee received an “SSA FNC,” the employer must also indicate whether the employee was terminated.
Paper Trail
If you review the last 4 paragraphs, you’ll notice I mentioned a variety of letters and notices. As with most areas of I-9 compliance, documentation is key. Therefore, as an employer, you’ll want to make sure to keep these signed letters on file with the I-9 (as instructed in your E-Verify User Manual). In the event of a government audit (relating to I-9s or E-Verify), you may be required to present these. If you are usinga good electronic I-9 and E-Verify compliance system, the employee and employer should be able to electronically sign these letters, and the system should automatically attach them to the employee’s record along with a detailed audit trail. Documentation is good, but paperless documentation with detailed audit trails is even better yet in building your “Good Faith” defense in case of an EEOC/OFCCP investigation and/or ICE audit!
More Information
Resolving TNCs can be a complicated process, and I’ve just given you a very brief overview. For more information, check out the USCIS web site here and review the latest E-Verify user manual. And if you’re stuck with a tricky E-Verify situation, make sure you consult experienced immigration counsel to avoid any missteps in this government dance
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