Today, the United States Citizenship and Immigration Services (USCIS) Verification Division held a stakeholder engagement to gather feedback on a formal “review process” for those employees who receive an erroneous final nonconfirmation (FNC) from the E-Verify system. The meeting consisted primarily of questions to the audience regarding our experience with the current FNC process as well as suggestions on a potential workflow for “contesting” an FNC.
Have you ever had an employee receive an FNC and claim they fixed the problem? If not, have you ever wondered whether the E-Verify system can/should provide more opportunities for employees to object to a government determination?
If so, read on for my executive summary of today’s session!
The E-Verify Process – the Simple Version
We start with the basics – an E-Verify case begins when an employer submits a new hire’s I-9 information (biographic data, document info, etc.) to the E-Verify system in order to confirm employment eligibility in the U.S. If the information matches government records (green light!), the employee is eligible to work and everybody goes about their merry way.
If there’s a mismatch (yellow light!), the system generates a tentative nonconfirmation (TNC) and the employee is given the opportunity to contest (which is recorded on a TNC notice). Assuming the employee is contesting, employers will refer him or her to either the SSA or DHS (depending upon where the mismatch occurred) by printing a Referral Letter that provides additional instructions. Once the case has been referred, the employee has 8 federal government workdays to visit an SSA field office or contact DHS. Once that contact has been initiated, the 8-day clock is stopped while the case is resolved (one way or another).
The subject of today’s blog is what happens when E-Verify cannot verify an employee’s work eligibility after a TNC has been processed. In these situations, E-Verify will provide an SSA or DHS final nonconfirmation (red light!), and instruct the employer that “you may terminate employment with no civil or criminal liability.” But what if the system was wrong somehow? Or perhaps the employee forgot (or was unable) to contact the appropriate government agency?
And therein lies our I-9/E-Verify riddle of the week: when is an E-Verify final nonconfirmation not really that final at all? Answer: when USCIS says it isn’t of course!
Why would an employer wish to appeal an FNC? It’s final, right?
First, it should be noted that erroneous FNCs do not occur all that often in the grand scheme of things. The most recent statistics from Fiscal Year 2010 show that only 1.7% of employees receive initial system mismatches, and of those, only 1.43% end in an FNC. What’s not so clear, however, is the percentage of employees who actually are work authorized but, for one reason or another, are unable to resolve the errors during the TNC stage.
So why would an employer doubt the results of E-Verify and tinker with an FNC? Well, based on my experience, there are at least two scenarios where this can occur: first, the E-Verify system can sometimes be very unforgiving when it comes to time-frames. As mentioned earlier, the employee is supposed to contact the government agency within 8 federal government workdays after the case is referred. What happens if the employee doesn’t make contact in that time frame? In many instances, an FNC automatically is generated – like clockwork. Another likely reason for erroneous FNCs has to do with the way the various government agencies interact with each other.
According to a report issued in 2010, SSA field office staff are not always aware that an employee is attempting to resolve a TNC when they show up to an SSA office. As a result, staff may not make a notation in their backend system (EV-STAR) to extend the case beyond the 8 federal working days. In both these situations, your employee may come back to you with evidence that they’ve fixed their errors, and you’re now in the tough spot I mentioned above.
Dealing with an FNC Today
As I described earlier, the TNC process is well-documented – involving deadlines, forms to complete and procedures which must be followed. When an FNC occurs, however, the choices for an employer (and employee) seem much more limited. According to the E-Verify Memorandum of Understanding (MOU), an employer is encouraged to terminate an employee who receives an FNC. In fact, if the employer continues to employ the individual after an FNC, the employer is obligated to notify DHS (through the system) AND is subject to a civil money penalty between $550 and $1,100 for each failure to do so. But that’s not all – the Employer is then also subject to a rebuttable presumption that it has knowingly employed an unauthorized worker in violation of section 274A(a)(1)(A) of the Immigration and Nationality Act. Not exactly an attractive option.
However, later in the MOU, it indicates that Employers or employees may call E-Verify at 1-888-464-4218 or OSC at 1-800-255-8155 with any questions about a final nonconfirmation. Aha! So there is an appeal process after all. If the employee is able to resolve the discrepancy with E-Verify over the phone, the agency will often issue what is known as a “Third Step Letter” which can be provided to the employer for their records. Click here to see a sample of one these letters.
Designing a Formal FNC Review Process
During the call, the USCIS representative asked several probing questions to hear our opinions on how a formal FNC review process should be designed. Audience members included corporate immigration attorneys, Web Services E-Verify employer agents, and several immigration advocacy groups. As a result, the USCIS received a nice mix of answers (in favor of the employer, employee, or sometimes both). Here are a sample of some of the questions and responses:
What barriers exist right now in the TNC process, which ultimately lead to an FNC?
- A few callers felt that most of the problems occur with the SSA – due in large part because they are not aware of the system or may give incorrect advice – resulting in several trips for the employee. The DHS process overall is easier to resolve.
- Refugees in particular can have a difficult time, since they have limited world experience when they first are hired in the U.S. (sometimes 4 months after arrival). Many don’t know how to react to the TNC notice, and refugee agencies are thinly staffed and may not be around to help.
- One caller suggested that the TNC period be extended in certain instances for good cause. In these scenarios, perhaps a DHS ombudsman could serve as an intermediary to help resolve the case.
What should be the trigger for requesting an FNC review?
- Most likely a phone call is the best method – can be easily done by employer or employee.
How should employers (or E-Verify Agents) be notified of an FNC appeal?
- E-Verify should notify the employer or Agent through the system that the case has been re-opened (assuming employee is still working with same employer).
- Employers with agents should be able to call E-Verify directly to contest the FNC (and E-Verify Agents should also receive notice of this call).
- To the extent possible, it would be ideal if the employer did not have to initiate a new E-Verify case in order to “clear up” the previous FNC. During the last couple of years, I’ve received conflicting guidance from USCIS on this point, so it would be nice if a standard process was developed that avoids the re-submitting of employees.
How would you envision the employee receiving information about an FNC review process?
- One call felt the employee should learn from the employer – i.e., through the system. Although it would be preferable not to have yet another “notice” or letter for the employer to maintain. Perhaps it could be combined in the existing TNC notice.
- How about notification through email? Low income employees may have a difficult time receiving email updates, and many don’t speak English. Two of the callers felt that text messaging may actually be better.
What would be the time for requesting a review?
- A few callers noted that from an employer’s perspective, giving the employee a shorter period of time (less than 10 days) would be better. Otherwise, it becomes burdensome for the employer. Giving longing periods may also lead to more instances of fraud involving unauthorized employees.
- However, a representative of low income workers said that 10 days was not enough, considering that these individuals cannot afford to take time off, may not speak English well (and thus have difficulty talking to the agencies), etc.
Should the employee be allowed to continue employment during the FNC review process?
- Most callers felt that the employee should be given the benefit of the doubt and be allowed to work.
- Low income employees in particular would suffer if employment is suspended. In addition, the employer would benefit from continued employment in most instances as well.
I must commend the USCIS Verification Division for listening to stakeholder feedback and recognizing that the current TNC/FNC process could be improved in several ways. Although the number of TNCs and FNCs are statistically low, it remains unclear what will happen if E-Verify eventually is mandated nationwide. Balancing the enforcement goals of DHS with legitimate employer and worker concerns will be critical in the coming months – and I’m hopeful that today’s teleconference will ultimately lead to a step in the right direction.
Final note: if you have additional comments about the FNC process, the USCIS is still taking suggestions and feedback. Send an email to USCIS-IGAOutreach@dhs.gov and reference “E-Verify Administrative Review Process” in the subject line of your e-mail.
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.