When you see articles on “E-Verify” around the net, you’re most likely going to read about big policy issues (is E-Verify effective, where is it required, what lies ahead, etc). While these are all important issues, I’m going to dig a bit deeper today and talk about some E-Verify minutiae (and believe me, there is plenty of that), which most likely impacts those employers who deal with the system on a day-to-day basis. In particular, I’m going to revisit the always-popular “Tentative Nonconfirmation” process, which was the subject of a “Listening Session” for E-Verify Employer Agents last week.
If you’re new to E-Verify TNCs, please check out my blog from last year where I discussed the overall process and concerns (most of which haven’t really changed all that much). At its simplest level, a TNC occurs when there is a mismatch between the information recorded on your employee’s Form I-9 and the information in the government databases. Although TNCs occur in less than 3% of all cases submitted (according to USCIS statistics), employers naturally fret about the process and the impact it will have on their employees. Needless to say, it can sometimes be a touchy situation when you have to inform an individual that a government system tells them they might not be authorized to work. On the other side, as an employee, you may just want to know how to “fix it” as quickly as possible.
Since TNCs are a big deal in the E-Verify world, the USCIS Outreach Branch asked us several questions concerning the initial notice which employees receive when the system generates a TNC. In particular, USCIS wanted to know how well the TNC notice (sample SSA notice here) was working in practice and whether any changes (in substance or form) should be made. As with other such engagements, it was a true “listening” session in that the USCIS moderators did not specifically answer or address any questions that were presented. They did, however, record the entire meeting which will be summarized on their website in the near future.
At the beginning of the call, the moderator announced the latest updates to the E-Verify system, which have occurred during this past year. If you’re a regular subscriber to this blog (if not, subscribe here), these will all be very familiar. In particular, the moderator discussed the E-Verify RIDE program for validating driver’s license information; the new I-9 Central web portal for I-9 guidance and tips; and the E-Verify Self Check program which is available for residents of 21 states and the District of Columbia. In addition to the blog links I provided, you can also read the latest “E-Verify Connection” newsletter (volume 5).
LawLogix Poll of TNC Notices
In preparation for the meeting, we polled our clients (many of whom include large diversified organizations) to gather their direct feedback concerning the TNC process and the TNC notice in particular. While many responded that they had yet to deal with a TNC (a good thing indeed!), we did receive some interesting feedback which I shared with USCIS during the meeting. Below is a summary chart of our clients’ views on the USCIS-generated TNC notice:
As you can see from the above, the overall response was generally positive, with employee rights being very clear (95%) whereas the necessary steps for the employee were somewhat less so (only 60% said that the steps were clear). Many of the respondents noted that the TNC notice was simply too long and contained too many words, making it difficult for the employee to read and comprehend. These same respondents noted that employees generally just want to follow a simple procedure, fix the TNC, and move on with their other work. Very few respondents indicated that information was missing from the TNC, although several made suggestions for improving the layout. Here are a few comments which we passed on to USCIS:
- TNC notice should be a one page road-map style of step by step instructions which focus on simply how to respond and resolve a TNC issue
- The contact number for the employee should be clearly and prominently displayed – perhaps at the top and/or bottom
- Information from the referral letter should be included – specifically, where the employee must go to resolve the TNC and/or whom they should contact
In addition, we also asked our clients whether the TNC process in general should be improved, specifically in regards to generating the letters, dealing with deadlines, and performing necessary follow-up. Below are additional comments we received:
- The government agencies should allow more time for the employee to contact the SSA or DHS. [Note - this particular comment was echoed by several respondents who had experienced a common problem- the SSA office failed to update their backend database during the employee’s visit. As a result, a No-Show was automatically generated, and we had to assist the employer in resolving the issue]
- While it’s great that we can electronically sign TNC notices and letters (a feature in the Guardian electronic I-9 system), it would be great if we only had to deal with one letter. Can both notices be combined into one?
- The USCIS instructions for providing TNC notices to employees in other languages is confusing and contradictory – it appears that an employee can sign the TNC notice in Spanish, but elsewhere USCIS states that only the English version should be signed and retained
- The process is extremely stressful on my staff, since they recognize that if the employee can’t resolve the issue, they will have to terminate them. This wouldn’t be a big deal, but thus far, we’ve only had false negatives (person legally authorized to work receives TNC)
During the session, USCIS graciously accepted all of our feedback, including several other insightful comments from other participants. Here are some other suggestions which I noted from the call:
- The TNC notice should clearly tell the employee what to bring to the SSA office
- The Final Nonconfirmation Process is not entirely clear in terms of when an employee needs to be terminated
- It’s difficult for multi-state employers to discuss the TNC notice “in private” when the employee is at another location
- The SSA offices are too slow in updating the E-Verify system (see “No Show” problem described above)
- The E-Verify (web) interface requires too much clicking back and forth
- The requirements surrounding retention of the notices and letters is unclear
- The language on the TNC notices and other documents should be standardized
- USCIS should consider removing the requirement to “close” cases when the initial response is “employment authorized”
- The TNC notice should be re-named “Mismatch” Notice, since that is instantly recognizable whereas “tentative nonconfirmation” requires some explanation
The E-Verify TNC process is often considered to be a riddle wrapped in a mystery inside an enigma (to borrow the often-quoted line from Winston Churchill). On some level, it seems as though the process could be more straight-forward and less daunting (to both employee and employer) – and the best way to tackle that problem may in fact be through a simpler TNC notice/letter which clearly sets out the process and allows greater time flexibility in light of government delays. Will we see that soon? It’s hard to tell. I am encouraged though that the USCIS is constantly reaching out to stakeholders to hear what we all have to say. If E-Verify is indeed the verification system of the future, a simpler, gentler TNC process will be a huge benefit to all employers.
John Fay is an experienced corporate immigration attorney and I-9/E-Verify blogger with a unique background in designing and advising on case management technology. While practicing immigration in New York City, John designed and managed his firm’s proprietary web-based immigration management system, which featured a fully multilingual interface for international organizations. In his current role, John serves as Vice President of Products and Services and General Counsel at LawLogix, where he is responsible for overseeing product design and functionality while ensuring compliance with rapidly changing immigration rules.