New E-Verify Further Action Notice

On September 9, 2013, U.S. Citizenship and Immigration Services (USCIS) announced a change in the procedures for handling Tentative Non-Confirmations (TNC). A TNC is generated if the employee’s data entered into E-Verify fails to match records on file for that individual at the Social Security Administration (SSA) or, for non-citizens, the Department of Homeland Security (DHS). Until now, a TNC notice was communicated to the employer only. The employer is asked to notify the employee of the TNC, and to obtain the employee’s decision on whether or not to contest the TNC. If the employee contests, the employer prints a letter directing the employee to contact the agency generating the TNC within eight federal government working days. If the employee does not contest or fails to contact the referring agency within the time limit, the employee is treated as if admitting lack of work authorization and is normally terminated. If retained, the employer must notify E-Verify of that decision.

The change combines the TNC Notice to the Employee and the letter of referral into a single document called a Further Action Notice (FAN). The FAN is available in 16 different languages, and in some circumstances the non-English version must be provided to the employee in addition to the English version. After reviewing the FAN with the employee, both the employer and the employee are required to sign and date the English version. The employer keeps the original signed FAN with the employee’s I-9 form, and provides a copy of the FAN to the employee. If the employee chooses to contest the no-match, the system generates a Referral Date Confirmation (RDC). The RDC includes the E-Verify case number, the name of the employee, and the deadline for the employee to contact the referring agency to respond to the no-match.

On July 1, 2013, USCIS announced that a no-match notification will be e-mailed directly to the employee if the employee has provided an e-mail address on the I-9 form. With the introduction of the FAN, the e-mail notifications are expanded to four separate messages which successively advise the employee of the no-match and the employee’s rights to contest the TNC, confirm the referral if the TNC is contested, and provide a reminder of the 8-day deadline if there is no contact by the fourth day. In some situations, a fourth e-mail will confirm that the no-match has been resolved. 

These changes will be covered at MSEC’s annual Immigration Law Update on September 20 at the Sheraton Denver West. This year’s update will also cover exciting developments in comprehensive immigration reform, including reform measures already in place; compliance updates on the I-9 form and E-Verify; enforcement activity by ICE, OCAHO, OSC and DOL; and developments affecting foreign workers.