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I-9, E-Verify, and Tentative Non-Confirmation

Posted by Afton Funk

Dec 1, 2012 12:02:00 PM

I-9 forms are one of those incredible mysteries of the modern era. The paper form is only a page long, and seems simple at first glance, but there are predators lurking in the shadows. All said, the forms are filled out by employers incorrectly an incredible 50% of the time. This often happens because HR often cannot oversee all of the hiring processes in every location, and there is incredible detail in the small print. This remarkable number of mistakes puts companies at risk for serious ducats. HRM is soon releasing the i9Pad which automates all of this, and helps companies get the document right the first time. We think that is pretty cool.

Now some companies go the next mile and use E-Verify. Here are some tips to make sure you don’t mess up on step two should your state or company require it.

1. E-Verify is NOT a pre-screening tool

The law specifically states that you can not use an I-9 to screen job candidates before you hire them. The government recently released a new law that allows job candidates to self-check their employment status before applying to your job, but you can not check the verify the employment status of any employee until you actually hire them.

2. If you use E-Verify, you must use it on ALL new hires

Legislation on E-Verify is designed to be as nondiscriminatory as possible. As such, the law stipulates that if you choose to use E-Verify, you must use it on every single new employee that you hire.

3. A Tentative Non-Confirmation (TNC) is NOT grounds to fire an employee

When an employee’s information is entered into E-verify, you will receive an “Employment Authorized” 96.5% of the time. However, on the rare occasion that an employee’s information does not get checked out immediately, you will receive a Tentative Non-Confirmation (TNC). A TNC does not mean that an employee is not legal to work, rather that the database wasn’t able to immediately find a match on the submitted documents. If this happens, you must go over the TNC notice with your employee and discuss the employee’s options. Your employee can either fix the mismatch, contest the TNC or choose to do nothing. What happens next is that the mismatch will be resolved and the TNC waived, or your employee will receive a final nonconfirmation, at which point you must terminate said employee.

Only a final non confirmation is grounds for employee termination, however. Any employee that receives a TNC is still eligible to work and can not be fired for having a TNC.

E-Verify is the government’s way of giving employers a free I-9 spell check. It won’t help you fix careless mistakes in filling out the form as we discuss here, but it addresses the issue of making sure that your employees’ have adequate legal documentation to work for you. Use it and rest easy knowing that even if you were fooled by a false employment document, so was the government.

Topics: I-9, Compliance, Onboarding

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