The E-Verify system is an electronic tool that compares a new hire’s Form I-9 information against records held by the U.S. Department of Homeland Security (DHS) and the Social Security Administration (SSA). While voluntary for most private employers, it is mandatory for federal contractors and certain state employers. E-Verify confirms employment eligibility, but data mismatches result in a Tentative Nonconfirmation (TNC). This status indicates a potential mismatch between the employee’s documentation and government records, requiring the employer to follow precise compliance procedures.
Understanding the Tentative Nonconfirmation
A Tentative Nonconfirmation (TNC) is a notification issued when a discrepancy exists between the employee’s Form I-9 details and official government databases. A TNC is not a finding of unauthorized employment, but an indication that government agencies require further information to complete verification. Mismatches originate from either the SSA or the DHS, pointing to different types of record issues.
An SSA TNC often occurs because an employee’s record is outdated, such as due to an unreported name change or un-updated citizenship status. DHS TNCs typically arise from issues related to immigration documentation, like an incorrect Alien Registration Number (A-number) or I-94 number. Both types of TNCs can also be triggered by a simple data entry error committed by the employer.
Must the Employee Stop Working?
The answer to whether an employee must stop working after receiving a TNC is no, provided the employee chooses to contest the finding. Federal regulations prohibit employers from taking any adverse action solely because a TNC has been issued. Adverse actions include termination, suspension, delaying training, or withholding pay.
This protection remains in place while the employee resolves the data mismatch with the appropriate government agency. Since a TNC is not a final determination of work authorization, employers must allow the employee to continue working under the same conditions until the case reaches a final resolution.
Employer Requirements and Notification Procedures
Upon receiving a TNC result, the employer must follow a mandatory procedure within a strict timeline. The employer must privately notify the employee and provide a copy of the “Further Action Notice” (FAN) generated by E-Verify. This must occur no later than 10 federal government working days after the mismatch result was issued.
The employer must review the FAN with the employee to confirm the personal information is correct and determine if the employee will contest the TNC. If the employee chooses to challenge the finding, the employer must indicate this in E-Verify and provide a “Referral Date Confirmation.” This document details the next steps the employee must take with the SSA or DHS. Employers must also ensure that required E-Verify and anti-discrimination posters are displayed in the workplace.
Employee Rights and the Contestation Process
The employee must decide whether to contest the TNC and inform the employer within the initial 10 federal government working days of issuance. Choosing not to contest automatically results in a Final Nonconfirmation (FNC). If the employee contests, the employer refers the case to the appropriate agency, and the formal resolution period begins.
The employee then has a limited window, typically 8 federal government working days from the referral date, to contact the SSA or DHS to resolve the mismatch. An SSA TNC requires visiting a local SSA field office, while a DHS TNC generally requires contacting the agency by phone or submitting documents electronically. The employee retains the right to continue working throughout this process, and the employer is prohibited from taking punitive action.
Analyzing the Outcomes of the Resolution Process
Once the employee contests the TNC, the case concludes with one of two final outcomes. The favorable result is a Final Confirmation, meaning the employee successfully resolved the discrepancy and the government confirmed employment authorization. The employer receives notification, and the E-Verify case closes with an “Employment Authorized” status.
The other outcome is a Final Nonconfirmation (FNC). An FNC is issued if the government cannot confirm eligibility after the employee attempts resolution, or if the employee fails to contact the agency within the mandated 8 federal working days. An FNC is also automatically issued if the employee chooses not to contest the original TNC within the initial 10-day period. Upon receiving an FNC, the employer must close the case in E-Verify. The employer may then terminate the employee based on the FNC result without civil or criminal liability under the E-Verify Memorandum of Understanding.
Maintaining Compliance and Avoiding Prohibited Actions
Employers must avoid prohibited actions that can lead to legal risk. Employers are forbidden from pre-screening job applicants using E-Verify before an offer is made or using the system to selectively verify employees. The E-Verify process must be applied consistently to all new hires.
Taking any adverse employment action, including termination or suspension, prior to the issuance of a Final Nonconfirmation is a violation of federal rules. This includes delaying training or reducing work hours simply because a TNC was received. Violating these rules can result in compliance actions, including termination of the E-Verify account, and may expose the employer to liability under federal anti-discrimination laws.