E-Verify Reminds Employers Not to Terminate Employees Based on Tentative SSA/DHS Nonconfirmations
This article was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Laura Danielson is an active member.
E-Verify has issued a reminder that employers may not terminate employees because of a Tentative Nonconfirmation (TNC) until the Social Security Administration (SSA) and/or Department of Homeland Security (DHS) has reviewed the case and the TNC becomes a Final Nonconfirmation.
A DHS or SSA TNC means that the information the employer entered in E-Verify from a Form I-9, Employment Eligibility Verification, did not match records available to DHS or SSA. A DHS or SSA TNC case result does not necessarily mean that a person is not authorized to work in the United States. The employer must give the employee an opportunity to take action to resolve the mismatch. If E-Verify cannot instantly confirm employment eligibility, it must manually review government records. E-Verify will try to do this within 48 hours to let the employer know whether or not the employee is authorized to work.
It is possible for E-Verify to issue a dual TNC, which means the case received a TNC result from both agencies at the same time because information entered into E-Verify does not match records available to both SSA and DHS. E-Verify identifies the agency or agencies associated with the mismatch in the TNC Further Action Notice.
E-Verify noted that a TNC for an information mismatch against SSA records may result because:
- The employee has not updated his or her citizenship or immigration status with SSA
- The employee did not report a name change to SSA
- The employee’s name, Social Security number, or date of birth is incorrect in SSA records
- SSA records contain another type of mismatch
- The employer entered the employee’s information incorrectly in E-Verify
A case can result in a TNC with DHS because the employee’s:
- Name, Alien Number, Form I-94 number. and/or foreign passport number are incorrect in DHS records
- U.S. passport, passport card, driver’s license, state ID, or foreign passport information could not be verified
- Information was not updated in the employee’s DHS records
- Citizenship or immigration status changed
- Record contains another type of error
- Information was entered incorrectly in E-Verify by the employer
Employers may not terminate, suspend, delay training, withhold or lower pay, or take any other adverse action against an employee because of a TNC until it becomes a Final Nonconfirmation.
If the employee chooses not to take action on the TNC, the employer may terminate employment with no civil or criminal liability, E-Verify said. The case can be treated as a Final Nonconfirmation and the employer should close the case in E-Verify.