In Depth: Navigating a Tentative Nonconfirmation (TNC)

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As an E-Verify employer, it is your responsibility to ensure that all employees are legally authorized to work in the United States. One of the most important aspects of this process is responding promptly to Tentative Nonconfirmation (TNC) notices that may arise during the verification of an employee’s work authorization. A TNC is a notification that there is a mismatch between the employee’s information submitted to E-Verify and the records in federal databases like the Social Security Administration (SSA) or the Department of Homeland Security (DHS). Addressing a TNC quickly is crucial to maintaining compliance with immigration laws and avoiding potential penalties.

A TNC occurs when an employee’s information does not match the government records maintained by SSA or DHS. This mismatch can happen for a variety of reasons, including errors in the information provided on the I-9 form, data entry mistakes, or changes in the employee’s immigration status that have not been updated in the government systems. A TNC does not indicate that the employee is unauthorized to work but requires immediate action to resolve the issue.

Once E-Verify processes the employee's information, if it finds any discrepancies with the government records, it will issue a TNC notice to the employer. This notification is delivered electronically through the E-Verify system, and employers are required to act promptly upon receiving it. Employers should check their E-Verify account regularly to ensure they do not miss any important notifications.

1. Notify the Employee: Upon receiving a TNC notice, the employer must immediately inform the employee of the result. The employer is required to provide the employee with the official TNC notice and explain the process for resolving the issue.

2. Provide the Employee with the Option to Contest the TNC: The employee must be given the opportunity to contest the TNC within 10 business days. The employee will need to contact the relevant agency—SSA or DHS—to resolve the discrepancy. The employer must allow the employee this time to take action and should not take any adverse action against the employee during this period.

3. Follow Up: If the employee contests the TNC, the employer must monitor the situation until it is resolved. If the issue is cleared up and the employee is authorized to work, the employer should update the E-Verify system and continue employment as normal.

4. Termination if Unresolved: If the employee does not contest the TNC or fails to resolve the issue within 10 business days, the employer must terminate the employee’s employment, as the individual will not be authorized to work. Employers are prohibited from continuing employment under these circumstances.

Employers who fail to comply with TNC procedures face serious consequences. The penalties for noncompliance can include:

Civil Penalties: Employers who do not follow the proper procedures after receiving a TNC could face fines. The penalties can range from $250 to $1,500 per violation for first-time offenses. However, if the violation is willful or repeated, penalties can be as high as $2,000 to $5,000 per violation.

Increased Scrutiny: Employers who repeatedly fail to resolve TNC issues may be subjected to more frequent audits or inspections by U.S. Immigration and Customs Enforcement (ICE), further exposing the company to legal and financial risks.

Decreased Eligibility for Government Contracts: Employers who have a history of noncompliance with E-Verify may lose the ability to participate in federal contracts, potentially damaging their business operations.

Consider a situation where an employer receives a TNC notification for an employee, informing them that the employee’s information doesn’t match DHS records. The employer does not promptly notify the employee and fails to provide the necessary time for the employee to contest the TNC. As a result, the employer continues to employ the individual without resolving the TNC.

In this case, the employer could face significant penalties for not following the required procedures. The penalty for such an infraction could be as high as $2,000 to $5,000 per violation. Furthermore, the employer could face further penalties if this behavior is deemed willful or repeated.

If an employer receives a TNC, there are options to consider for resolution:

Assist the Employee: Employers can play an active role by helping employees understand the TNC process and ensuring that the employee contacts the relevant government agency to resolve the issue promptly.

Verify Information: Employers should ensure that all employee records are complete and accurate. Mistakes in data entry on the I-9 form can cause delays or issues when verifying through E-Verify.

If your business receives a TNC, it is critical to take immediate action. Failing to follow the required steps can expose your business to fines, penalties, and legal consequences. Given the complexities of immigration laws and the potential risks of noncompliance, employers who are unfamiliar with the TNC procedures should consult with our attorney as soon as possible. We can guide you through the TNC resolution process, help mitigate risks, and ensure your business remains compliant with all relevant laws. Taking swift action now can prevent costly mistakes and protect your business from unnecessary penalties.