subject: Handling Tricky E-Verify Situations: What To Do If E-Verify Can't Confirm Your Employee [print this page] Handling Tricky E-Verify Situations: What To Do If E-Verify Can't Confirm Your Employee
In the E-Verify process for confirming an employee's eligibility to work in the U.S., almost 4% of individuals receive an initial, tentative non-confirmation (TNC) from either the Social Security Administration (SSA) or Department of Homeland Security (DHS). This requires the employee to review the TNC notice with his or her employer and then visit the SSA or DHS office within 8 federal working days in order to resolve the non-confirmation issue.
If you are the employer of someone who receives a TNC, what steps should you take to protect your company and/or support the employee during this process? Here are five common TNC scenarios and the best practices for managing them.
1. An employee who received a TNC has been unable to resolve the issue after 8 days.
As long as the employee can demonstrate that he/she has contacted the SSA or DHS and is actively trying to resolve the non-confirmation, the employee may not be terminated or suffer any adverse employment consequences based upon the TNC. The US agency that manages the E-Verify program, the United States Citizenship and Immigration Services (USCIS), has stated that "the eight-day timeframe in the E-Verify program rules is the time allotted for the employee to initiate the process of resolving his or her tentative non-confirmation-not the time allotted for a tentative non-confirmation to be finally resolved."
USCIS expects that the employer will simply keep checking back with the E-Verify system to see if the matter has been resolved.
If the employee informs you of his/her attempts to contact the SSA or DHS, you should document what the employee has done (e.g., date and time of his/her visit to the SSA or DHS Office and name(s) of people with whom he/she has spoken). Note, however, that the latest USCIS guidance is that employers should not ask the employee for any documentation evidencing their visit, to stay clear of discrimination claims.
2. You receive a final non-confirmation from the E-Verify system, but the employee insists that s/he is legally authorized to work--and you believe him/her.
You may set a company-wide policy to simply find that the employee is not work authorized and terminate employment if a final non-confirmation (FNC) is issued, which is the safest route from a compliance perspective, but may have other ramifications when you truly feel the FNC result is a government database error.
Know that if you keep the employee on your payroll despite a FNC, you are risking a finding by DHS that you knowingly employed an unauthorized worker. However, if you have strong evidence to support the employee's claim (such as an original approval notice from USCIS or other work permit filed by your company), you may rebut the argument that there was no willful violation of the law, but only a desire to not unfairly discriminate against any worker.
These cases will be extremely rare. Please contact your legal counsel immediately to guide you.
3. An employee confesses that he/she does not have work authorization in the U.S.
When this happens, you are now considered to have actual knowledge that the employee is not authorized to work in the U.S. In the event of an I-9 audit, the company could be subject to both civil and criminal liabilities if the employee continues to be employed. Therefore, you will need to terminate the employee in order to avoid these liabilities.
4. The employee tells me that he/she has been using a fake Social Security Card or Number, and lied on his/her application form about his/her immigration status? However, he/she has now come forth with a correct Social Security Number.
If your company has a policy of terminating an employee who has lied on his/her application or used fake documents, you may have grounds to terminate the employee even though he/she now possesses a valid Social Security Number/Card or valid work authorization.
It is important that you review how strictly such a policy has been used to terminate employees. If it has been used on a case-by-case basis, you should clearly document why you have decided to keep or terminate the employee in this particular situation. You can take into consideration the longevity, job performance, and other objective criteria of the employee. However, if your company has been using the policy on a "zero tolerance" basis, you should continue to apply the policy the same way and terminate the employee.
5. Your employee is unauthorized to work in the US, but you really want to help the employee because he/she has been with the company for a long time and is a valuable worker. What can you do to help or even sponsor the employee?
There is very little that a company can do to "legalize" an employee's work authorized status in the U.S. on the fly. You should speak with an immigration attorney if you have employees in this situation, who you really want to keep. While it is possible for a company to sponsor foreign nationals who are eligible for temporary work authorized visas, or possibly a "green card", these process are generally lengthy and the results are uncertain.
If you have employees in this situation who you really want to keep, you should speak with an immigration attorney.
Helpful resources
As you can tell, some E-Verify situations can be tricky, but there are resources available to help both employer and employees. For employers, you can call or email the E-Verify helpdesk (888.464.4218 or E-Verify@dhs.gov ) or contact the Office of Special Counsel hotline (800.255.8155). Employees can also contact E-Verify at (888.897.7781) or the OSC hotline (800.255.7688).
Finally, all users of E-Verify should make sure to take the mandatory online E-Verify tutorial to understand these important requirements and nuances.
Disclaimer: The content of this article does not constitute direct legal advice and is designed for informational purposes only. Information provided here should not be acted upon without consulting legal counsel,as individual situations and facts may vary.
