While completing a Form I-9 is required for all new hires, the E-Verify system remains optional for many employers.
However, as federal, state and local legislation continues to evolve, and penalties for non-compliant employment eligibility programs continue to intensify, more employers are including E-Verify as part of their employment eligibility process.
In Fiscal Year 2011, approximately 1,300 new businesses signed-up for E-Verify each week, contributing to the 16.6 million E-Verify checks conducted during the year.
While 98.3 percent of employees pass the E-Verify check or are “work authorized”, employers must understand their requirements if information submitted does not initially match Department of Homeland Security (DHS) records.
If employers fail to take the correct actions when this occurs, then they could be exposed to penalties including fines, government oversight, and more.
What is E-Verify?
E-Verify works by comparing the information employees provide on an Employment Eligibility Verification form (Form I-9) against government records maintained by the Department of Homeland Security (DHS) and Social Security Administration (SSA).
When the information provided does not match, E-Verify responds with one of several types of Tentative Non-Confirmations (TNC) that require specific actions by the employer and employee.
Among the actions that employers should take when a TNC is returned are:
DO look for data entry errors
Ensure that employee data is entered correctly into the query. If mistakes are found, then the E-Verify query can be terminated as invalid. Employers can then correct the errors and resubmit the query.
DO provide the employee with a copy of the TNC notice
The TNC notice explains what a DHS TNC is, why the employee received a DHS TNC, and what the employee’s options are after having received a DHS TNC.
DO provide required referral letters to employees who receive a TNC
The referral letters contain instructions and agency contact information that employees will need to contact the DHS and/or SSA to resolve the TNC.
DO follow the TNC case process
The DHS TNC dispute process requires specific and time-bound actions from the employer and employee, which can be up to six steps including notifying the employee of the TNC, employee deciding whether or not to contest, employer referring the case to DHS, employee contacting DHS, employer receiving the updated results and then the employer closing the case.
DO terminate employees that choose not to contest TNCs
Continuing employment could lead to a presumption that the employer is knowingly employing an unauthorized worker.
DO close the query
Regardless of the outcome of the TNC case, employers must close every case in the E-Verify system.
Employers should avoid doing the following when a TNC is returned:
DON’T assume the employee is not authorized to work in the United States
A DHS TNC indicates that the information entered does not initially match DHS records, and more information may be needed to verify. Common triggers for TNCs include: Name, A-number and/or I-94 number being incorrect in DHS records, U.S. Passport, Passport Card, driver’s license or state ID card information not being able to be verified, out-of-date information in the employee’s DHS records, citizenship or immigration status changed, data entry errors or other errors.
DON’T prevent employees from working while contesting a TNC
Employers must allow employees to begin and continue work while the employee contests the TNC.
DON’T discourage the employee from contesting
Employees have the right to contest a TNC. Of the 1.7 percent of TNCs, more than 46,000, or .28 percent end up being confirmed as “work authorized” after completing the dispute process.
DON’T request status updates from the employee
The E-Verify system provides status updates of the TNC case. Employers should check this daily for updates which could include: “Employment Authorized”, “No Show”, “Final Nonconfirmation”, or “Review and update data/resubmit.”
Managing the E-Verify process can be challenging. However, employers can simplify this process by using a leading E-Verify provider.
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