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Be Careful Out There

Authored by, Robert Birach – Attorney at Law

I was recently contacted by a client working in the United States with TN status who received an “E-Verify – Notice to Employee of Tentative Nonconfirmation”, (TNC) Notice.

If you have never seen one of these before, the first page contains instructions to the employer asking the employer to review the information provided by the employee to ensure that the employees first and last names, last 4 digits of Social Security number, alien registration number (if any) and employee’s document (I-94) number are all correct.  If they are not the employer must close the case in E-Verify and open a new case with the correct information.

You must contact the employee and indicate, on page #2, whether the employee will contest the TNC Notice, ask the employee to sign and date the TNC Notice on page #2 then (the employer) sign and date page #1 of the notice.  A copy of the signed notice must then be given to the employee with a copy of the employee’s I-9 and you must indicate in E-verify that you notified the employee of the TNC then click “Continue”.

Sounds simple enough, right?  WRONG!

If the employee chooses to contest the TNC Notice, you, the employer, must send the case to Department of Homeland Security, through E-Verify, and you must provide a referral letter to the employee explaining how to contact the Department of Homeland Security and what information or documents they will need to provide.  The employee then has eight (8) Federal Government work days, from the date the employer refers the case in E-Verify, to contact Department of Homeland Security.

You cannot terminate nor take negative action against the employee, based on the employee’s decision to contest the TNC.  Negative action includes suspending, withholding pay or training, delaying a start date or otherwise limiting employment.

If an employee chooses not to contest the TNC, it will automatically become a Final Nonconfirmation which means that you will have the right to terminate that employee.  Likewise, if the employee does contest and you receive a Final Notice of Nonconfirmation, you can terminate the employee.

It is in your best interest to provide the TNC Notice to the employee immediately.  It is the employee’s information that is being verified, not the information provided by the employer on page #2 of the I-9.  That being said, anytime an I-9 is being scrutinized by the government, errors contained in the employer’s section of the I-9 may be discovered and the matter referred to United States Immigration and Customs Enforcement (USICE) for an audit of all of the company’s I-9s.  This is an increasingly common phenomenon known as “inter-agency cooperation”.  While in the past most I-9 audits were triggered by complaints of disgruntled former employees or competitors, more and more we are seeing audits triggered by the sharing of information between government agencies and different divisions within those agencies.

The reason that I remind you of this is that in the instant case, while reviewing my client’s I-9 form, I discovered that while all of her information was accurate, the employer portion of the form contained numerous and very substantial errors.  In this instance (a Canadian citizen offering a Canadian passport and an I-94 card endorsed with TN status), the employer did not include the passport number, the document title (I-94), listed a wrong issuing authority (Canada versus USA), did not list the document number (I-94 number), and used the wrong expiration date.  When Department of Homeland Security reviews the I-9 form and compares it to the employee’s documentation to verify that the information given by the employee was correct, they will discover the errors of the employer and issue a report containing their findings to USICE alerting them to the errors and creating a very real possibility of audit.  This happens to be a publicly traded company with in excess of 25,000 employees, so you can imagine the expense involved.

Do not let this happen to you.  1)  Make sure that you immediately contact your employee if a TNC Notice is received and; 2) do not take any negative action against the employee unless and until you receive a final Nonconfirmation Notice and; 3) make sure that your I-9 forms are audited on a regular basis by a competent professional.

About Robert Birach,

Robert Birach is a well respected and seasoned attorney who specializes in complex immigration cases, numerous businesses, law firms, and individuals. Robert M. Birach, considered one of the top immigration attorneys in the country.  He regularly lectures on immigration law, and is often interviewed by the national media and serves as an expert witness on immigration issues in Court and administrative hearings. Contact Robert Birach at:  bob@cgblegal.com.

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