The Labor & Employment Blog is a forum for practitioners and Bloomberg BNA editors to share ideas, raise issues, and network with colleagues.
Wednesday, September 4, 2013
by Laura D. Francis
Ahead of a likely legislative requirement that the E-Verify
electronic employment eligibility verification system be made mandatory for all
U.S. employers, the National Immigration Law Center recently released a report warning that the
way the system works now could mean that hundreds of thousands of
work-authorized individuals might face problems from mismatches between
their information and what’s contained in government records, also known as
tentative nonconfirmations (TNCs).
Right now 404,295 employers are enrolled in E-Verify, only about
7 percent of all U.S. employers. But both the comprehensive Senate-passed
immigration bill (S. 744) and legislation (H.R. 1772) passed by the House
Judiciary Committee would require all employers to use the system.
NILC’s report said that while the most recently calculated
error rate for TNCs is 0.3 percent, erroneous TNCs are much more common for
lawful permanent residents and other work-authorized foreign nationals than for
citizens. Also, a 0.3 percent error rate among all employees in the U.S., as
would be the case under either bill, might mean that somewhere between 150,000
and 500,000 people would have to correct a problem with either the Social
Security Administration or the Department of Homeland Security.
And even though employers that use E-Verify are required to
inform employees of TNCs and how to contest them, NILC said many employers
don’t, and in several cases take some kind of adverse job action against
employees with a TNC even though E-Verify rules prohibit such action. The
report added that some employers also violate E-Verify rules by using the
system to pre-screen job applicants.
NILC attributed a portion of erroneous final
nonconfirmations (FNCs)—a determination by E-Verify that an individual isn’t
authorized to work—to employers’ failure to inform employees of TNCs. But U.S.
Citizenship and Immigration Services, which administers E-Verify, is taking
some steps in an apparent attempt to alleviate that problem.
For example, in early July the agency announced that if
employees voluntarily provide their email addresses on the new I-9 employment
eligibility verification form, TNC notices can be sent directly to the
employee’s email, and the employee won't have to rely on his or her employer
to provide that information.
USCIS more recently announced that, beginning Sept. 8, the
TNC Notice and Referral Letter will be replaced with a Further Action Notice and a Referral Date Confirmation.
The new Further Action
Notice will inform employees of a TNC, give them the option of contesting it
with SSA or DHS, and tell them how to do so, the agency said. Once an employer
refers a TNC case to SSA or DHS, E-Verify will produce a Referral Date
Confirmation that the employer must give the employee. That confirmation will
contain the deadline for the employee to contest the TNC.
In Other News:
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Employee Background Checks
Adverse Employment Action
Burden of Proof