On Saturday, the United States Citizenship and Immigration Services (USCIS) issued new E-Verify guidance for employers in response to the COVID-19 pandemic that has been upending both personal and professional life as we once knew it. This latest update follows last Friday’s extraordinary Form I-9 announcement from Immigration and Customs Enforcement (ICE), allowing remote employers to conduct a virtual verification of the I-9 documents during the coronavirus outbreak. In case you missed it, you can read all about it here.
E-Verify’s update is primarily centered around Tentative Nonconfirmations (or TNCs), which in laymen’s terms is when the E-Verify system detects that the employee’s information submitted from the Form I-9 does not match government records. A TNC can originate from either the Social Security Administration (an SSA TNC) or from the Department of Homeland Security (a DHS TNC) depending upon where the mismatch is occurring.
In either scenario, an employee who decides to contest the TNC must usually make contact with the government office (either SSA or DHS) within 8 federal government working days. Employees with SSA TNCs need to visit a local SSA office; DHS TNCs can usually be resolved over the phone. Failure to make contact within the 8-day period can lead to a Final Nonconfirmation from the E-Verify system and termination of employment.
Even in the best of times, TNCs can be a hassle for the new hire, especially when it turns out that there was some data issue (or error) in the government systems. But in a COVID-19 world, resolving TNCs can be downright impossible due to the recent closures of all SSA offices nationwide. In response, E-Verify is now extending the timeframe to resolve the TNC for an indefinite period, and noting that employers cannot take any adverse action while a case is in an “Interim” status.
E-Verify also reminded employers that new cases must still be submitted within 3 days of hire. Here’s what you need to know:
Employers are still required to create cases for their new hires within three business days from the employee’s start date (what they call the “hire date”). Employers must use the hire date from the employee’s Form I-9 when creating the E-Verify case. If case creation is delayed due to COVID-19 precautions, the employer should select “Other” from the late reasons drop-down list and enter “COVID-19” as the specific reason.
If you receive a TNC after E-Verify submission, you’re still required to notify your employee as soon as possible so they can decide whether to take action (i.e., contest) the TNC, as documented on the Further Action Notice, and transmitted to the E-Verify system. Employees who choose to take action to resolve a TNC will then be referred to SSA and/or DHS as usual.
This is where the change occurs (as a result of COVID-19): E-Verify is automatically extending the timeframe to take action to resolve SSA TNCs due to SSA office closures to the public. E-Verify is also extending the timeframe to take action to resolve DHS TNCs in limited circumstances when an employee cannot resolve a TNC due to public or private office closures.
E-Verify also reminded employers that they may not take any adverse action against an employee because the E-Verify case is in an interim case status, including while the employee’s case is in an extended interim case status. Interim case results include Tentative Nonconfirmation, Verification in Process, and Case in Continuance.
By John Fay for LawLogix
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