SSA Reestablishes Tentative Non Confirmations Requirements

In March 2020, E-Verify temporarily extended the deadline for contacting the U.S. Social Security Administration in response to tentative nonconfirmations of employee eligibility (TNCs). This decision was made because many SSA offices were closed to the public as a result of the COVID-19 pandemic.

Last month, the SSA rescinded that temporary extension.

Effective July 15, 2022, any employee who receives a TNC due to a mismatch with SSA records must contact the agency within eight federal workdays. Failure to respond within that timeframe may result in termination of employment.

What is E-Verify?

E-Verify is an online tool that employers can use to confirm that employees are eligible to work in the United States.

The E-Verify system compares information that employees provide on Form 1-9, Employment Eligibility Verification, to records maintained by the U.S. Department of Homeland Security (DHS) and the U.S. Social Security Administration (SSA).

The system that became E-Verify was established in 1996 with the passage of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). It launched in 1997 under the name Basic Pilot Program and was renamed E-Verify in 2007.

E-Verify is administered by the SSA and the United States Citizenship and Immigration Services (USCIS), which is part of the DHS.

Who Is Required to Use E-Verify?

All employers in the United States are required to have a fully completed Form 1-9 for every employee who is hired to work in the U.S. However, use of the E-Verify system is optional in most cases.

On the federal level, employers who have contracts or subcontracts that include the Federal Acquisition Regulation (FAR) E-Verify clause must enroll in the system.

In some states, E-Verify use is mandatory for some or all employers. As of Jan. 1, 2021, the following 22 U.S. states have passed E-Verify legislation:

• Alabama
• Arizona
• Colorado
• Florida
• Georgia
• Idaho
• Indiana
• Louisiana
• Michigan
• Minnesota
• Mississippi
• Missouri
• Nebraska
• North Carolina
• Oklahoma
• Pennsylvania
• South Carolina
• Tennessee
• Texas
• Utah
• Virginia
• West Virginia

E-Verify may also be used by employers in the District of Columbia, Puerto Rico, Guam, the U.S. Virgin Islands, and the Commonwealth of Northern Mariana Islands.

How Does E-Verify Work?

Once an employer has enrolled in E-Verify system, they can easily confirm the employment eligibility of each person they hire. Here’s a general overview of how the system works:

1. The new employee completes Form I-9, as required by law.
2. No later than the third federal workday after the employee begins working, the employer uses the information from their Form I-9 to create a case in E-Verify.
3. If the employee has provided the employer with an approved form of photo identification, the employer can compare that photo with an image that is displayed by E-Verify.
4. The E-Verify system compares the information from the Form I-9 with records that are maintained by DHS and the SSA.

Once the employer has entered the information from the new employee’s Form I-9, E-Verify typically returns an initial result in a matter of seconds.

How Are E-Verify Cases Resolved?

Initially, E-Verify will respond with one of the following three results:

• Employment Authorized: This means that the information from the employee’s Form I-9 matches data that is on file with DHS and/or the SSA. This is considered a final case result, and it will cause the system to automatically close the case.
• Verification in Process:  This result indicates that the employee’s information could not be immediately confirmed, so the case has been automatically referred to DHS. Once DHS has completed its review, it will issue one of three results: Employment Authorized, Tentative Nonconfirmation, or Case in Continuance. Typically, this is accomplished within 24 hours, but it may take up to three federal workdays.
• Tentative Nonconfirmation (TNC): A Tentative Nonconfirmation result indicates that the information from the employee’s Form I-9 did not match either SSA or DHS records. A TNC requires additional action by both the employer and the employee, which is explained in greater detail in the next section.

Cases that do not initially result in Employment Authorized may lead to one of the following results:

• Case in Continuance: This means that the employee has contacted DHS or SSA, but the case has not yet been resolved. There is no standard timeframe for resolving a case that has been placed in continuance.
• Close Case and Resubmit:  This result typically occurs when incorrect information has been submitted. When this result is issued, the employer will need to close the case, open a new case, and resubmit the required information.
• Final Nonconfirmation: This result may indicate that eligibility could not be verified even after the employee contacted DHS or the SSA as required. It may also be issued if the employee fails to contact DHS or the SSA within the eight-day timeframe. A result of Final Nonconfirmation authorizes termination of employment.

Employment Authorized, Close Case and Resubmit, and Final Nonconfirmation are considered to be final results. Once one of these results has been issued, the employer will be notified regarding what steps, if any, they need to take.

What Happens If a Tentative Nonconfirmation (TNC) Is Issued?

As noted in the previous section, an initial result of Tentative Nonconfirmation (TNC) means that the submitted information is inconsistent with one or more of the records that are maintained by the SSA and DHS.

When E-Verify issues a TNC, it will identify which agency’s records did not match the submitted information from the Form I-9. If records from both agencies were inconsistent with the employee’s data from the Form I-9, that will be indicated as well. This will be included in a Further Action Notice.

Once the Further Action Notice has been generated, the employer and the employee both need to take certain steps.

Employer Actions

The first step the employer needs to take is to inform the employee that their E-Verify case resulted in a TNC. This must occur within 10 federal workdays.

The employer must print out the TNC and the Further Action Notice and review this information with the employee in a private setting.

• If, during this review, the employer discovers that they submitted incorrect information when they opened the E-Verify case, they can indicate this in the Further Action Notice and then close the case.
• If the employer correctly submitted the information that the employee provided, the employer must ask the employee if they intend to take the necessary action to resolve the TNC.
• The employer must tell the employee that they have until the 10th federal workday following the issuance of the Further Action Notice to make their decision.

The employer must have the employee sign and date the Further Action Notice, retain the original signed and dated notice, and provide the employee with a copy.

Employee Actions

Once the employee has reviewed the Further Action Notice with their employer, they need to take the following steps:

• They must let the employer know if the information that was submitted to E-Verify is accurate.
• They must decide if they intend to take the necessary action to resolve the TNC.
• They must inform the employer of their decision within 10 federal workdays after the Further Action Notice was issued.
• They must sign and date the Further Action Notice.

If the employee decides to attempt to resolve the TNC, they have eight federal workdays to contact the appropriate agency (SSA or DHS).

If the employee opts not to attempt to resolve the TNC, or if they fail to inform their employer of their decision within the required timeframe, the employer can close their case and terminate their employment.

What TNC Response Timeframes Are Now in Effect?

The eight-day TNC response requirement applies to all E-Verify cases that were referred to the SSA on or after July 15, 2022.

For cases with TNCs that were issued prior to July 15, 2022, the following extended timeframes remain in effect:

• If an employee’s case was referred to the SSA from March 2 to Dec. 31, 2020, the employee should contact the SSA between Oct. 1 and Dec. 31, 2022.
• If an employee’s case was referred to the SSA in 2021, the employee should contact the SSA between Jan. 1 and March 31, 2023.
• If an employee’s case was referred to the SSA between Jan. 1 and July 14, 2022, the employee should contact the SSA between April 1 to June 30, 2023.

Please note that the information in this post is a summary of guidance that has been posted on the E-Verify website or provided by the U.S. Social Security Administration, U.S. Department of Homeland Security, and U.S. Citizenship and Immigration Services.

For additional details about E-Verify, or to confirm that the procedures and deadlines described in this post have not been changed, please contact these sources directly.

Stay Compliant & Informed with Orange Tree

When you’re focused on running a business, it can be difficult to ensure that you are up to date on changing federal and state eligibility verification requirements. At Orange Tree, we understand the challenges that this can present, and we’re here to help.

Our ability to closely monitor all relevant updates is just one of several ways that we can eliminate distractions from your workday, so you can dedicate your full attention to your employees and your organization.

To learn more about the many benefits of partnering with Orange Tree, schedule a free introductory consultation today.

We recommend employers review and discuss with your legal counsel your organization’s policies and procedures to ensure continued compliance with the changing laws and regulations.