By John Fay
The United States Citizenship and Immigration Services (USCIS) has begun notifying E-Verify employers that they only have a few days left to take action on outstanding Social Security Administration (SSA) mismatch cases (also known as Tentative Nonconfirmations or TNCs) that were previously extended by the agency during the pandemic.
As many HR practitioners may recall, the USCIS extended the timeline for resolving SSA-based mismatches in March 2020, as businesses and government offices alike (including the SSA) shuttered their doors in response to COVID-19. Under normal circumstances, an employee contesting an E-Verify SSA TNC must visit their nearest SSA office within eight federal government working days or risk getting a Final Nonconfirmation (FNC) and loss of employment.
While many employers (and employees alike) appreciated the “TNC holiday” from E-Verify, the extended time period led to a large queue of referred TNC cases with the SSA office that were essentially “frozen” in time. Last year, E-Verify announced that the SSA had resumed processing of E-Verify mismatches as of July 15, 2022 and would provide employees with an extended grace period (until September 29, 2023) to visit the SSA office and clear-up any mismatches that were referred between March 2, 2020 and July 14, 2022.
As the Sept. 29 deadline approaches, E-Verify has been sending two different types of compliance notices to employers who have unresolved TNCs that were initiated during the period mentioned above:
This notice informs the employer of the number of referred SSA mismatch cases that remain unresolved and warns that failure to take action will result in a FNC. This email warning also addresses a frequently asked question from HR: what to do if the employee who received the TNC is no longer working for your organization.
According to the notice, E-Verify indicates that if “the employee(s) no longer work for you, no action is required now. E-Verify will eventually generate a FNC result and you must close the case(s) at that time.” This will be welcome news for some employers who have been anxiously waiting to remove these referred cases from their dashboards or resubmit them in the case of rehired employees.
This notice warns the employer of any unreferred SSA mismatch cases that remain unresolved - specifically, that the employer still needs to either refer or close the case. The messaging and tone of this email message is noticeably more dire, warning the employer that failure to take action may result in an E-Verify Account Compliance action, which could result in account termination.
Notably, the E-Verify team also mentions that employers must “follow all E‑Verify policies and procedures to process mismatches, as outlined in the Memorandum of Understanding and guidance materials, for your E‑Verify account to remain in good standing.”
As many employers may know, this “E-Verify good standing” determination now takes on a whole new level of importance since it’s one of the foundational requirements for using the new “alternative procedure” for remotely examining documents in lieu of a physical in-person inspection which became available as of August 1, 2023.
Employers who are using (or considering) the so-called “virtual” option should pay especially close attention to their E-Verify procedures and processing timelines to ensure that they can qualify for this option.
For more information on the new virtual option for examining documents and its unique program requirements, please see our prior blog here.
Employers with pending SSA mismatches that were received between March 2, 2020 and July 14, 2022 should carefully review their E-Verify records for unreferred and pending cases and take action where necessary. This may include reaching out to impacted employees to provide the required notices and instructions as described on the E-Verify website.
If your employee has already visited the SSA office and the case still appears in a “Referred” status, you will need to wait for an additional update from the E-Verify system. As a reminder, E-Verify rules indicate that employers cannot take any adverse action against an employee while the case remains in an interim status.
If you receive a Final Nonconfirmation, E-Verify instructs to close the case as noted in the E-Verify User Manual. Employers may terminate employment based on a Final Nonconfirmation, or if there is any doubt about the results, request additional review by calling E-Verify directly.
Lastly if you have terminated employees with referred covid TNCs, you will need to wait until the Final Nonconfirmation is issued before you close out the case and indicate that the employee is no longer employed.
If you have any questions about managing your I-9s for your organization or would like more information on our integrated I-9 and E-Verify software solutions which are available today, please visit I-9 HQ™.
The information provided is intended as general guidance and is not intended to convey any tax, benefits, or legal advice. For information pertaining to your company and its specific facts and needs, please consult your own tax advisor or legal counsel. Equifax Workforce Solutions provides services that can help employers reduce their compliance risks. Details on our provision of these services and related support will be contained in your services agreement. Links to sources may be to third party sites. We have no control over and assume no responsibility for the content, privacy policies or practices of any third party sites or services.