By Bruce Buchanan, Sebelist Buchanan Law

E-Verify appears to be very concerned about employers and employees taking the correct steps after a Tentative Non-confirmation (TNC) is received by the Employer concerning a recently hired employee, who does not receive work authorization. On November 2, E-Verify issued an email to employers concerning the necessary steps. Previously, on October 12, the USCIS sent an E-Verify email notifying employers that E-Verify requires enrolled employers take action on TNCs for their employees within 10 federal government working days, including closing a TNC if no action is taken. See https://discuss.ilw.com/blogs/bbucha...t-working-days.
Below are the steps cited by the E-Verify email after the employer receives the TNC and is issued a Further Action Notice (FAN) from E-Verify:

Step 1:
• The employee should read the FAN within 10 federal government working days after E-Verify issued the TNC.
• The employee should ensure his or her name, date of birth, and Social Security number are correct and tell the employer immediately if any information is incorrect.

Step 2:
• The employee should decide if he or she is going to contest (take action) or not contest (do not take action) the DHS or SSA TNC case result. (Often, the employee is uncertain whether he wants to contest the TNC and does not immediately provide an answer. In these COVID days, the employer may not see that employee again during the 10 federal government working days.)
• The employee should notify the employer of his or her decision to contest or not contest the TNC within 10 federal government working days after E-Verify issued the TNC.

If the employee decides to contest the TNC (take action): The employer must refer the case to DHS or SSA through E-Verify. The employer will also give the employee a Referral Date Confirmation, which provides the date by which the employee must visit SSA or contact DHS.
If the employee decides not to contest the TNC (not take action): The employer may terminate the employee’s employment because of the TNC and there are no additional steps for the employee to take. The employer should then close the case in E-Verify.
If the employee does not tell the employer whether he or she will or will not contest the TNC within 10 federal government working days after E-Verify issued the TNC, the employer should close the case. The employer may terminate the employee’s employment.

Step 3:
• The employee should visit an SSA field office (In COVID times, SSA offices are usually closed so E-Verify has “frozen the clock” for all SSA TNCs as long as SSA offices remain closed.); or
• The employee should contact DHS within 8 federal government working days to contest the TNC.

Step 4:
• The employee should wait for the employer to inform the employee of the final E-Verify case result.

E-Verify will automatically update the case with the DHS or SSA result. The final case result will indicate whether E-Verify confirmed the employee’s work authorization.

Although the USCIS may be properly following its regulations, it appears to be short-sighted in its view. Employees may have little time to decide whether to contest the TNC if their Employer does not notify them until the ninth or 10th day of the TNC. As stated above, USCIS says an employer should close the case and terminate the employee, if the employee does not tell the employer whether he or she will or will not contest the TNC within 10 federal government working days after E-Verify issued the TNC.

In my view, employers are doing their best to respond to TNCs. For years, employers have operated with the belief it had a “reasonable period” of time before closing a TNC. Now, the USCIS seems to be becoming overly vigilant in these matters.

If you are concerned about your company’s E-Verify compliance, I invite you to read The I-9 and E-Verify Handbook, a book that I co-authored with Greg Siskind, available at http://www.amazon.com/dp/0997083379.