Tougher E-Verify Enforcement

Jackson Lewis P.C.

E-Verify is moving toward tougher enforcement, which can result in a temporary termination from participation in the E-Verify program.

Early in the COVID-19 pandemic, E-Verify relaxed some of its standards regarding Tentative Nonconfirmation (TNCs). But, by November 2020, E-Verify stopped allowing extensions and began enforcing its usual timing requirements.

Employers receiving a TNC must notify the affected employee by providing the Further Action Notice explaining they must contact the appropriate government agency within 10 federal government workdays. If the employee does not respond or decides to “not contest” the TNC, the employer must note this choice in E-Verify by closing the case within 10 federal government workdays. When TNC cases remain open in E-Verify for more than 10 federal government workdays, it may be that the employer is not acting in accordance with TNC requirements. The government has stated that such failures may be considered policy violations that can lead to compliance action, up to and including termination of the employer’s E-Verify account.

Employers who have TNCs that have remained open for more than the 10 days have received notifications from E-Verify asking them to take action to resolve the open TNCs and reminding the employers of the possible consequences of non-compliance. Recent indications are that E-Verify may cut off employer access to E-Verify after 30 days if the government does not see sufficient follow up.

For employers who are required to use E-Verify under federal law (such as federal contractors and sub-contractors) or under state law or employers who use E-Verify primarily to provide STEM OPT, termination of their E-Verify accounts could have significant repercussions.

Jackson Lewis attorneys continue to monitor the situation. 

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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