Author: Melissa A. Silver, XpertHR Legal Editor

September 11, 2013

Effective September 9, 2013, the E-Verify tentative nonconfirmation notice and referral letter have been combined into, and replaced by, one document - a further action notice. This enhancement simplifies the process for E-Verify employers that receive a tentative nonconfirmation (TNC) result when confirming an employee's employment eligibility.

Employers may initially receive a TNC if an individual's employment eligibility information does not match the information about the individual in the government's records. In that event, the employee has an opportunity during a limited period of time (eight federal workdays) to resolve the issue by visiting or contacting the appropriate government agency, i.e. the Social Security Administration or the Department of Homeland Security.

The new, comprehensive further action notice now contains the following information:

  • The employee's biographical information;
  • The reason for the TNC;
  • The employee's decision to contest the TNC; and
  • Instructions for the employee to contest a TNC.

When the employer receives the further action notice it must do the following things:

  • Promptly review the further action notice privately with the employee.
  • In the event that English is not the employee's primary language, or the employee has a limited ability to read or understand English, the employer must provide the new hire with a translated version of the notice (if available).
  • Confirm that the employee's information on the further action notice is accurate.
  • Ask the employee if he or she will contest the further action notice by signing and dating it, in which case the employer must sign and date it as well.
  • Give the employee a copy of the further action notice and retain the original with the employee's Form I-9, Employment Eligibility Verification.

The employee must check that his or her information on the further action notice is accurate; decide whether to contest the TNC and inform the employer of his or her decision; select whether he or she is contesting the TNC on the further action notice; and sign the notice.

If the employee decides that he or she will contest the tentative nonconfirmation, then the employer is required to print out and give the employee a referral date confirmation notice. The employer must attach a copy of the referral date confirmation to the Form I-9 and give the original to the employee. This document identifies the deadline for an employee to visit or contact the appropriate government agency. It also informs the employee that if he or she fails to act by that deadline, a final nonconfirmation notice will be issued and the employer may terminate the employee.

As with the prior process, during the time that the employee is contesting the TNC, employers are prohibited from doing the following:

  • Influencing an employee's decision about whether to contest the TNC.
  • Requesting additional documentation from the employee after receiving a TNC.
  • Terminating an employee or taking any adverse actions against an employee during the TNC process, e.g., suspension or withholding of pay or training..