June 18, 2019

June 18, 2019

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June 17, 2019

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Resolving E-Verify Tentative Non-Confirmations is Taking Longer, CATO Institute Reports

The CATO Institute, a public policy research organization, has released results from a series of Freedom-of-Information-Act (FOIA) responses from the Verification Division of US Citizenship and Immigration Services (USCIS) (the agency responsible for managing the E-Verify program) showing that as many as one-third of the TNC (tentative non-confirmation) responses from E-Verify could take at least eight days to resolve.

E-Verify is an Internet-based system that allows employers to determine the work eligibility of employees by verifying employees’ information against Social Security Administration and Department of Homeland Security databases.  An employer transmits Form I-9-related information through a secure computer conduit and will receive either a response that  the employee is “work authorized” or a TNC (tentative non-confirmation). 

Employers have been critical of the TNC resolution process.  By contract, a participating employer is prohibited from taking any adverse employment action against the employee during the TNC resolution process.  For some employers, the cost associated with the delay includes training the new employee and providing uniforms.  In addition, the employer-verifier must routinely check with E-Verify to confirm resolution—logging in, checking, logging out, and transmitting follow-up instructions and requests for information to the employee.

The CATO FOIA responses revealed that in 2012, there were 68,775 contested TNCs through E-Verify.  Of those, 21,007 were Social Security Administration follow-ups with an average turnaround of 3.42 business days after the TNC was contested by the employee.  Department of Homeland Security handled the other 47,768 contested TNCs, with an average turnaround of 6.01 business days.  Following are the numbers for FY2008 through FY2012:

Number of Days to Resolve

FY

Contested SSA TNC Cases

≤ 1 Day

1 to 2 Days

2 to 3 Days

3 to 8 Days

≥ 8 Days

2008

4,708

1,536

952

2,932

918

2009

3,180

987

577

1,800

748

2010

6,094

2,093

1,261

3,906

1,503

2011

6,274

2,221

1,344

4,503

1,695

2012

7,778

2,791

1,853

6,122

2,463

 

37.0%

13.3%

8.8%

29.1%

11.7%

FY

Contested DHS TNC Cases

≤ 1 Day

1 to 2 Days

2 to 3 Days

3 to 8 Days

≥ 8 Days

2008

5,284

855

530

1,118

16,924

2009

5,977

828

538

1,128

16,345

2010

11,880

2,053

1,172

2,587

20,936

2011

15,445

3,010

1,762

3,637

21,380

2012

16,246

3,166

1,928

4,224

22,204

 

34.0%

6.6%

4.0%

8.8%

46.5%

Nearly half of the DHS-related TNCs took longer than eight business days to resolve.  For reporting purposes, eight days is the minimum possible delay for that category—meaning, it could be weeks or months until those TNCs are resolved.

The 68,775 contested TNCs in FY2012 represent about 0.33 percent of the 21.1 million E-Verify queries nationwide.  Extrapolating that rate over the total U.S. active employee population would produce 511,500 contested TNCs—36% of those, or 184,140, projected to take eight days or longer to resolve.

Jackson Lewis P.C. © 2019

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About this Author

Principal

Kevin Lashus is a Principal of the Austin, Texas, office of Jackson Lewis P.C. His practice is focused on corporate employment verification compliance and inbound business immigration.

Mr. Lashus has experience in providing uniquely tailored advice to assist clients in developing comprehensive employment authorization and immigration-related compliance systems—including full-scale or localized IMAGE and E-Verify implementation protocols. Given his public-sector background—first as a Texas Assistant Attorney General, then as...

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