By Dawn Lurie

Employers using the government’s E-Verify program will encounter a new customer enhancement being implemented by the U.S. Citizenship and Immigration Services (USCIS). On June 28th, the USCIS announced that employees providing an email address on the Form I-9 will start to receive direct notification when their case results in a Tentative Nonconfirmation (TNC). Specifically, when an employee provides this information and then receives a TNC from E-Verify, the employee will be notified by USCIS directly through his or her email address about the TNC. I remember thinking about how the government would use this information when the new version of the Form I-9 added the optional space for employees’ e-mail and telephone information. It was apparent to me that the government (think beyond USCIS) would eventually use these fields to open up communication directly with an employee. What I was not expecting was the timeline; the fact that this “enhancement” was rolled out so quickly is impressive.

What Is a TNC?

TNCs occur when the information an employer provides to E-Verify about an employee does not match data found in either U.S. Department of Homeland Security (DHS) or Social Security Administration (SSA) records. There are three types of TNC notices: 1. SSA no-match; 2. DHS no-match; and 3. DHS no photo match. Remember, receipt of a TNC does not mean that the employee is not authorized to work in the United States. There are many reasons a TNC could occur including an unreported name change, information not being timely updated in the employee’s immigration records, and incorrect SSA records. It is important to let the employee know there is a clear process to correct any errors and that the employee will continue to work during the resolution process. More importantly, employer representatives must understand this process and follow the proper E-Verify procedures. These procedures have been carefully designed to ensure equitable treatment and due process for all employees.

The TNC Process in a Nutshell

SSA TNC. The employee with a SSA TNC will be notified of the TNC and then the employee will need to decide whether to contest the TNC. The notification can be done in person or via email but should ensure that privacy concerns are addressed. If contested, the employer will refer the case in the E-Verify system and then provide the employee with the documents printed from the system. The employee will be instructed to visit a local Social Security Administration office within eight federal working days of receiving the letter.

DHS TNC. The employee with a DHS TNC will participate in the same process as above but will be required to call (not visit) DHS to resolve the matter. Again, the same timeline should be adhered to.

DHS mis-match. In this case, the photo provided during the Form I-9 process does not match the photo E-Verify presented on the screen. The employer must make a copy of the document the employee provided and submit it to DHS for review.

After initiating the TNC contesting process, employers do nothing else but check the E-Verify system for updates. It is critical to keep in mind that while the majority of these issues are resolved almost immediately, a number of these cases can languish for months at a time. Employers must continue to employ the employees during this period and must not treat them any differently.

Previously, employees only learned of TNCs through their employers. Even with this new USCIS direct communication protocol, employers are still required to notify employees when there is a TNC. Employers must continue to follow these standard processes and protocols for processing TNCs, including timely notification and referral of employees to the appropriate government agency.

Increased Government Activity

Over the past year, the Monitoring and Compliance (M&C) branch of E-Verify as well as the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) have both been very active in uncovering E-Verify-related abuses (both intentional as well as unintentional). Indicative of a growing problem, many internal audits we oversee, on behalf of employers, confirm a lack of training. Occasionally our office uncovers an overall disregard for implementing tight processes and procedures to handle E-Verify TNCs. In particular, we have seen a growing issue with electronic Form I-9 systems that are not set up in a way to easily deduce which TNC cases are still open and whether or not they are being handled timely. Employers need to ensure this process is reviewed internally and that there is no overreliance on such systems.

What exactly the role for USCIS will be in reviewing the TNC with the employee remains to be seen. While touted as customer service enhancements, there are certainly other not so nuanced possibilities. Will they ensure that TNCs are addressed within the correct timeframes just by flexing their potential presence in the process? Will they share data with the OSC when there are potential discriminatory practices uncovered, such as placing employees on leave or cutting hours while the TNC is pending? Will they share data with ICE when patterns and practices are discovered, such as not acting on TNCs for individuals that turn out to be unauthorized to work? It is too early to tell, but it is likely that these communications will force companies to devote additional resources to increase attention in an area that is often overlooked.

How We Can Help You

We urge you to dial into the USCIS stakeholder teleconference on Monday, July 1, 2013 at 2:00 p.m. EST. During the phone conference, USCIS will discuss how the new feature will affect employers and employees and will review employee rights. In addition, USCIS will answer questions from stakeholders relating to the program. To join the session, call 1-800-779-1545 and use the password TNC.

The Sheppard Mullin Immigration Compliance team regularly trains companies in E-Verify protocols, develops policies to ensure E-Verify compliance, and audits current systems in an effort to minimize liability and recommend improvements. With employees now speaking directly to E-Verify, it is more important than ever to ensure that those responsible for handling the E-Verify process understand the timelines involved, the process, and the need to treat all employees fairly.