Pandemic-Based E-Verify TNC Temporary Extensions To End

Jackson Lewis P.C.

E-Verify will no longer allow extensions for addressing Tentative Nonconfirmations (TNCs) beginning November 5, 2020.

After relaxing processing guidelines because of processing hardships due to COVID-19, E-Verify is again enforcing its requirement that employees choosing to contest TNC notifications must take action to contact the appropriate government agency within 10 federal government workdays.

TNCs are issued when the data entered in E-Verify does not match the available Social Security Administration (SSA) or Department of Homeland Security (DHS) records. A TNC does not necessarily mean an employee is not authorized to work in the United States. TNCs can be issued for many reasons, including typographical errors, legitimate name changes, mistakes in birth dates, incorrectly recorded passport or A-numbers, and immigration status changes. An employer should not terminate an employee based upon a TNC notification. Rather, it should follow the regulated steps for meeting with the employee as soon as possible to review the TNC notification and attempt to resolve the mismatch.

A TNC notification issued by E-Verify triggers regulated steps that must be followed to notify the employee immediately. If the employee chooses to “contest” the mismatch, the employer must note this choice in E-Verify. E-Verify will issue instructions to provide to the employee for how to contact SSA or DHS to resolve the problem. Then, within 10 federal workdays, the employee must follow the E-Verify instructions and contact the appropriate agency to keep the case working toward resolution. The employer will be notified when the issue has been resolved. The employee may remain working during this wait period, however long it lasts. When the issue is resolved, E-Verify will notify the employer and provide instructions for closing the E-Verify case for that employee.

If E-Verify cannot resolve the issue, or if the employee does not contact the agency as instructed, E-Verify will issue a Final Nonconfirmation (FNC), which advises the employer to terminate the employee. The employer will have to note in E-Verify whether the employee remains employed, despite the FNC, or whether the employee has been terminated.

If the employee decides to “not contest” the mismatch, the employer must note this choice in E-Verify. E-Verify will instruct the employer to terminate the employee and close the case.

Failure to close TNC cases in E-Verify suggests to the government that employers are not referring cases to SSA or DHS when employees chose to take action to resolve TNCs or closing cases in the system when employees chose not to take any action to resolve the problem.

It is critical that employers pay attention to timing requirements within E-Verify and close out cases in a timely manner

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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