By Bruce Buchanan, Sebelist Buchanan Law PLLC

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USCIS Says Employer Action Required on Tentative Non-confirmations within 10 Federal Government Working Days

On October 12, 2020, the USCIS sent an E-Verify email notifying employers that E-Verify requires enrolled employers take action on Tentative Non-confirmations (TNCs) for their employees within 10 federal government working days. Further, starting on November 5, 2020, E-Verify will begin notifying employers not in compliance with this legal requirement to take action to meet the requirement.

The email stated:
Having TNC cases that remain open and without action for an extended period of time may suggest that your users 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. Both of these are violations that may lead to compliance action, up to and including termination of your E-Verify account.
If your employee does not give you their decision by the end of the 10th federal government working day after E-Verify issued the TNC, then you close the case.
This email is somewhat curious because E-Verify’s Memorandum of Understanding does not state this requirement. Rather, it discusses an employer instructing the employee to visit the SSA office or DHS hotline within eight federal government working days and the applicable office will transmit the results of the referral within 10 federal government working days. It does not discuss a deadline for employers to take action on TNCs. Furthermore, the email does not cite to any authority for this change.

Before the email, the USCIS had stated to employers that it must close TNCs within a reasonable period of time.

Questions: Why this change now? What is their authority? Stay tuned to see if answers are forthcoming.

If you want to know more about issues involving E-Verify, I recommend you read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, and available at http://www.amazon.com/dp/0997083379.