This article applies to your case if:
- We have notified you that an SSA or DHS ‘No Show’ response was received from E-Verify because the new hire failed to contact the appropriate agency, as required by the Further Action Notice (FAN); or
- We have notified you that an SSA or DHS Final Non-Confirmation response was received from E-Verify; or
- You have notified us that the subject of a pending case is no longer employed (quit voluntarily or terminated for reason unrelated to E-Verify TNC).
We must correctly close every case opened in E-Verify, based on information provided by you. Cases left open and unresolved for an unreasonable length of time can result in a phone call or email from E-Verify’s compliance division, or even trigger a full audit of your I-9s and E-Verify/I-9 processes.
Uncontested Tentative Non-Confirmation
When a new hire decides to not contest a Tentative Non-Confirmation, it automatically becomes a Final Non-Confirmation and you may terminate employment with no civil or criminal liability as noted in “Responsibilities of the Employer,” Article II, Section A, paragraph 8 of the MOU. (This may occur when you review the Further Action Notice with the employee. Report the employee’s decision to NOT take action here: https://helpdesk.verifyi9.com/tnc/ )
SSA or DHS “No Show”
A ‘DHS No Show’ case result indicates that the employee did not contact DHS within eight Federal Government working days and is considered a Final Non-Confirmation. Employers may terminate employment based on a case result of ‘DHS No Show’ with no civil or criminal liability as noted in “Responsibilities of the Employer,” Article II, Section A, paragraph 8 in the MOU.
SSA or DHS Final Non-Confirmation
When we notify you that an SSA or DHS Final Non-Confirmation has been received, you may terminate employment based on a case result of ‘SSA or DHS Final Non-Confirmation’ with no civil or criminal liability as noted in “Responsibilities of the Employer,” Article II, Section A, paragraph 8 of the MOU.
You must close an open E-Verify case even if the employee quits voluntarily or is terminated for a reason unrelated to E-Verify.
Closing the Case
When we notify you that a Final Non-Confirmation has been received, or when the employee resigns voluntarily or is terminated for a reason unrelated to the pending TNC, you should report the case closure here promptly.
Notifying the Department of Homeland Security
Because participation in E-Verify is voluntary (at least, as far as the federal government is concerned), you can choose to exercise your legal right to allow the employee to continue to work. The final step in closing an E-Verify case is informing DHS whether or not the employee will continue to work for your company. The “Close a Case” form will ask you several questions so that we can close the case correctly.
Employing an Unauthorized Worker. Whether the E-Verify result is a Social Security Administration Final Nonconfirmation, DHS Final Non-Confirmation, DHS No Show or the employee decided not to contest a TNC result, we must notify DHS at the time that we close the case whether or not you terminated employee who received a Final Non-Confirmation or chose not to contest a TNC. Employers may be subject to a civil money penalty of between $550 and $1,100 for failing to notify DHS of the continued employment of a non-authorized individual.
Timeliness: If we do not receive a final disposition of a case from you within 72 hours, we must notify the DHS that the employee continues to work for you after receiving a Final Non-Confirmation result. We do this so that you can avoid the penalties described above for failing to report continued employment in the event that the employee was not authorized to work. Doing so does not, however, relieve you from any penalties for employing an unauthorized worker. You are subject to a rebuttable presumption that you have knowingly employed an unauthorized alien in violation of federal law if you continue to employ any employee after receiving a Final Non-Confirmation.
Allowing the employee to continue working after a Final Non-Confirmation does NOT make the employee authorized, however. If you are found to employ unauthorized workers, you can be fined, subjected to monitoring during a probationary period, and more. You should NOT continue to employ unauthorized workers. Continuing to employ someone after a Final Non-Confirmation or after he opts not to contest a TNC leads to a presumption that you are knowingly employing an unauthorized worker.
Reporting that you will continue to employ an unauthorized worker does NOT make the employee authorized. You are in violation of federal immigration law if you employ an unauthorized worker, regardless of your notification to the federal government via E-Verify.
Our recommendation is to NEVER continue to employ a new hire who has decided to not contest a TNC or who has been issued a Final Non-Confirmation by E-Verify.