U.S. Citizenship and Immigration Services (USCIS) announced that employees will receive direct notification via email -- at the same time employers are notified -- when their case results in a tentative nonconfirmation (TNC) through the E-Verify system.
E-Verify has been updated to align with the latest revision of Form I-9, which includes an optional field in Section 1 for employees to provide an e-mail address.
Currently, if there is a records mismatch that needs to be resolved before the employee can be confirmed as work-authorized, a TNC is issued to the employer, which must then contact the affected individual.
This change to E-Verify came about because of situations in which companies were not providing employees with proper notice of, or sufficient time to address, the TNC.
“This does not do away with the employer responsibility to notify the employee of a TNC,” said Justin Storch, manager of agency liaison at the American Council on International Personnel, an affiliate of the Society for Human Resource Management. The employer must inform the individual even if his or her e-mail address is entered into E-Verify. The only change for employers is they must now enter the e-mail address from the I-9 into E-Verify.
“This latest customer service enhancement to E-Verify is part of our ongoing efforts to highlight employee rights and responsibilities by providing employees with knowledge about their verification status,” USCIS said in a news release.
Employees completing an I-9 are not required to fill in the new e-mail field in Section 1. Storch explained that the e-mail should not be entered into E-Verify from any other source. If the e-mail box on the I-9 is left blank, nothing should be entered into the e-mail field in E-Verify.
Along with providing the initial notice of a TNC, USCIS will send reminder e-mails to employees if they haven’t taken any action to resolve the TNC within four days and to notify them about the possible need to update their records.
The TNC process
A TNC occurs when information a business provides to E-Verify about an employee does not match the data found in either U.S. Department of Homeland Security (DHS) or Social Security Administration (SSA) records.
“Receipt of a TNC does not mean that the employee is not authorized to work in the United States,” clarified Dawn M. Lurie, a partner in Sheppard Mullin’s Labor and Employment practice group and leader of the firm’s Business Immigration and Compliance practice, based in Washington, D.C. “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’s 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.”
After initiating the TNC contesting process, employers only 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,” Lurie cautioned. Businesses must continue to employ the affected individuals during this period and must not treat them any differently, she said.
If the worker provides an e-mail address, he or she may list any e-mail, even a work address, said Ann Cun, an immigration attorney, counsel and principal editor for LawLogix Group. Employers have expressed concerns about staff using work e-mail addresses on Form I-9, but USCIS states that they may not instruct employees on which e-mail addresses to provide.
“If your organization prohibits the use of work e-mail addresses for personal use, it may be worthwhile to visit this issue with your counsel to develop a policy that complies with this guidance and comports with your organization’s work policies,” Cun recommended.
She added that companies are allowed to tell employees that the DHS may use the e-mail address they list to contact them about the work-eligibility verification process.
USCIS will send an e-mail to employees in these three scenarios:
• E-Verify will send an automatic TNC-notification e-mail to the individual and advise the employee to contact his or her employer.
• If the employee decides to contest the TNC, he or she has eight federal government working days to follow up with the appropriate federal agency. If by day four the employee has not yet done so, E-Verify will send an automatic reminder e-mail to the individual.
• In certain TNC cases, DHS will confirm some employees as work-authorized in the E-Verify system as part of its final determination. USCIS will then automatically e-mail the affected workers to encourage them to proactively correct their data with the SSA to prevent future TNCs.
Increased government oversight
Over the past year the E-Verify Monitoring and Compliance branch and the Office of Special Counsel for Immigration-Related Unfair Employment Practices have been very active in uncovering E-Verify-related abuses, said Lurie.
These abuses are often due to a lack of training, she said. “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.”
Organizations that fail to enter the e-mail address that employees provide on their I-9 may be investigated for noncompliance.
“It’s 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,” Lurie said.
Roy Maurer is an online editor/manager for SHRM. Follow him @SHRMRoy
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