E-Verify Allows Employers Additional Time to Resolve Tentative Nonconfirmations

March 24, 2020

Due to the Coronavirus Pandemic the E-Verify system is allowing employers additional time to resolve the Social Security Administration (SSA) Tentative Nonconfirmations (TNC’s) due to SSA public office closures.  Additionally, the timeframe has been extended to take action to resolve Department of Homeland Security (DHS) TNC’s in limited cases when an employee is unable to resolve a TNC due to public and private office closures.

An important note to employers:

You the employer must notify your employee about their TNC result as soon as possible.  After your employee is notified of their TNC and decides whether to take action to resolve the TNC, the employee should acknowledge the decision on the Further Action Notice, and the employer should notify E-Verify of their employee’s decision. Employees who choose to take action to resolve a TNC are referred to SSA and/or DHS. Employers may not take any adverse action against an employee because the E-Verify case is in an interim case status, including while the employee’s case is in an extended interim case status.

Temporary E-Verify policies that will aid both employees and employers during this time are:

  • Employers are still required to create cases for their new hires within three business days from the date of hire.
  • Employers must use the hire date from the employee’s Form I-9 when creating the E-Verify case. If case creation is delayed due to COVID-19 precautions, select “Other” from the drop-down list and enter “COVID-19” as the specific reason.
  • Employers may not take any adverse action against an employee because the E-Verify case is in an interim case status, including while the employee’s case is in an extended interim case status.

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DHS Announces Requirements Related to Form I-9 Compliance

Due to the guidance on “social distancing” and majority of employers implementing policies limiting physical proximity associated with COVID-19 the Department of Homeland Security (DHS) announced on March 20th that it will “exercise discretion” to suspend the physical presence requirement related to the Employment Eligibility Verification (I-9) under Section 274A of the Immigration and Nationality Act (INA).  Companies with employees executing physical proximity precautions will not be required to validate and verify employee documents in the presence of the employee.  However, employers are still required to:

  • Review and inspect documentation from Section 2 (via over video link, fax or email, etc.) and retain copies of documents within three business days for purposes of completed Section 2. 
    • Enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field once physical inspection takes place after normal operations resume.
    • Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 additional information field on the Form I-9, or to section 3 as appropriate.

These stipulations may be instituted by employers for a duration of 60 days from the date of this notice OR within three business days after the termination of the National Emergency, whichever occurs first.

*Employers who avail themselves of this option must provide written documentation of their remote onboarding and telework policy for each employee. This burden rests solely with the employers.

Once normal operations resume, all employees who were onboarded utilizing the remote verification must report to their employer within three business days (for an “in person” verification of identify and employment eligibility documentation for Form I-9.  Once the employer is physically able to verify identity they should add “documents physically examined” with the inspection date (in Section 2 “additional information”) or to Section 3 as appropriate.

*Any audit of subsequent Forms I-9 would use the “in-person completed date” as a starting point for these employees only.

These provisions only cover employer and workplaces that are operating remotely.  If employers have employees physically located at work sites there are currently no exceptions being implemented.  However, if new hire(s) or current employees are subjected to COVID-19 quarantine or lock down instructions, DHS will evaluate on a case by case basis. 

**Effective March 19, 2020, any employers who were served NOIs by DHS during the month of March 2020 and have not already responded will be granted an automatic extension for 60 days from the effective date. At the end of the 60-day extension period, DHS will determine if an additional extension will be granted. ** The DHS will continue to monitor the National Emergency and provided updates and guidance as it becomes available.  Employers are required to monitor the DHS and ICE websites for additional updates regarding when the extensions will be terminated, and normal operations will resume

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