On October 5, 2020, U.S. Citizenship and Immigration Services (“USCIS”) announced a 10 federal government working day period in which employers will need to take action within E-Verify on Tentative Non-confirmations (“TNCs”) by either referring the case to the Social Security Administration and/or the U.S. Department of Homeland Security (DHS) or closing the case.
Until this announcement, USCIS had not imposed a hard and fast deadline for employers to take action on TNCs. Instead, prior guidance from USCIS simply required employers to take action “as soon as possible” after receiving a TNC. Following this announcement in the Fall of 2020, E-Verify is now notifying some employers who did not take action on TNCs within this 10-day time period.
Explaining why it has clarified its guidance, USCIS stated that having TNC cases that remain open and without action for an extended period of time may suggest that users are either not referring TNC cases to the Social Security Administration or Department of Homeland Security when the employee chooses to contest to resolve the TNC, or are not closing the case when an employee chooses not to contest to resolve the TNC. Importantly, USCIS further stated that both of these are violations that may lead to compliance action, up to and including termination of the employer’s E-Verify account.
It is important to remember that the 10-day period does not go to the actual resolution of the TNC. Instead, the 10-day period relates to the requirement for the employer to either (a) indicate the employee is contesting the TNC or, (b) close the case. Therefore, as long as the employer takes the required action within the 10-day period, Covid-related closures or delays should not impact the E-Verify TNC process or lead to consequences for the employer.
The clarified guidance in the current version of the E-Verify Manual tells employers to take the following steps after E-Verify issues a TNC result:
- Download and print the Further Action Notice (“Notice”) and confirm whether the information listed at the top is correct.
- Privately notify employee of the TNC.
- Have employee review and confirm whether the information listed at the top of the Notice is correct.
- Instruct the employee to indicate his or her decision to contest the TNC or not contest and to sign and date the Notice.
- Provide the employee with a copy of the signed Notice in English (and a translated version, if appropriate).
- Keep the original signed Notice on file with Form I-9.
- Instruct the employee that they must notify the employer of their decision (whether he or she is contesting or not contesting the TNC) as soon as possible by the 10th federal government working day after E-Verify issued the TNC result, or else the employer will be required to close the case in E-Verify.
- Close the case in E-Verify if the employee does not give you their decision by the end of the 10th federal government working day.
As a reminder, the E-Verify rules allow employers to terminate employees who choose not to take action on a TNC. Indeed, Section 3.3. of the updated E-Verify Manual further states, “If the employee chooses not to take action on the TNC, the employer may terminate employment with no civil or criminal liability as noted in “Responsibilities of the Employer,” Article II, Section A paragraph 13 of the E-Verify Memorandum of Understanding. The case can be treated as a Final Non-confirmation and the employer should close the case in E-Verify. If the employee does not give the employer their decision by the end of the 10th federal government working day, after E-Verify issued the TNC result, the employer should close the case in E-Verify. E-Verify will be unable to confirm the employee is authorized to work in the United States and the employer can terminate employment.”
Despite the statements in the E-Verify MOU that authorize an employer to terminate an employee who decides not to contest a TNC, we remind our clients to always seek advice from employment counsel before deciding whether or not to terminate an employee.