E-Verify had experienced a serious technical glitch on October 22, 2013, and the online system used to verify workers’ identity and employment authorization erroneously gave employers Tentative Nonconfirmations for all employees who provided U.S. Passports or U.S. Passport Cards. For some employers, that meant a nearly 40-percent TNC rate.
U.S. Citizenship and Immigration Services has provided the following guidance to employers: “If you created a case for an employee who provided a U.S. Passport or Passport Card and received a Tentative Nonconfirmation, close the case as ‘Invalid because the data entered is incorrect.’”
Next, the employer should create a new case for the employee using the same U.S. Passport or Passport Card information provided for Form I-9, USCIS advised. This will trigger an escalation query as well for most employers because the subsequent transmission may occur outside the mandated three days after hire. When prompted to explain the delay in transmission, employers then should select: “Other—October 22, 2013 E-Verify technical defect.”
USCIS further instructs, “[I]f you were unable to create a case, you should now create a new case for the employee using the same U.S. Passport or Passport Card information provided for Form I-9.”
Employers are reminded that they are prohibited by law from asking employees to provide a different document if the document(s) they provided, including the U.S. Passport or Passport Card, appear to be genuine and relate to the individual presenting it. The technical problem with E-Verify does not indemnify employers from allegations of immigration-related employment discrimination. Requiring an employee to present new or different documentation could be considered document abuse and is prohibited under the Immigration and Nationality Act.
Please contact your Jackson Lewis immigration counsel with any questions or concerns.