After a Final Non-Confirmation: Why Do Employers Have a Choice?

Have you ever wondered why, when you are closing a Final Non-Confirmation, we ask if you will continue to employ the unauthorized worker? It doesn’t make sense that you should have the option to continue to employ someone who has not received a positive verification or has decided not to contest a TNC, does it?

E-Verify law and program rules provide employers with several options when an employee’s E-Verify case receives a Final Non-Confirmation result. After receiving a Final Non-Confirmation, you may choose to terminate or to continue the employee’s employment. We must tell the Department of Homeland Security (DHS) what you chose; that’s why we ask the question.

So, why the choice?

It may help to think of it this way: you have an obligation under federal immigration law to use reasonable care not to hire or continue to employ an unauthorized worker. “Reasonable care” includes reviewing original ID documents and matching them to the new hire. E-Verify is just another tool to help you make the right decision, but the decision is yours.

E-Verify does not mandate that you fire an authorized worker. E-Verify just provides more information that you can use to make the right decision. E-Verify does require that you notify the DHS of your decision.

An example case

ABC Widgets submitted a new hire for verification and E-Verify issued a TNC. The employee, a U.S. citizen, elected to contest but, concluding that it wasn’t a big deal, failed to follow through on the process (visit a SSA office; call DHS, etc.).  After the 10-day appeal period, we returned a Final Non-Confirmation to ABC Widgets. The employer, knowing or reasonably believing that the worker is indeed a U.S. citizen and authorized to work (all U.S. citizens are), chooses to continue to employ the new hire.

If the worker is indeed authorized to work, ABC Widgets would not be guilty of employing an unauthorized worker; but failing to notify the DHS (through us) that ABC Widgets had decided to keep the employee would be a violation of the E-Verify Memorandum of Understanding.

Our recommendation

We want you to stay out of trouble with the federal government. If you continue to employ a worker for whom we have returned a Final Non-Confirmation, you are then subject to a rebuttable presumption that the employee was hired in violation of federal immigration law. In other words, the government can assume that you’ve violated the law, and you’d have to prove otherwise.

Unless you are absolutely sure that the worker is authorized, our advice is to terminate the new hire and advise them that they may be subject to rehire if/when they resolve the FNC. (A Final Non-Confirmation is not necessarily “final.”) There is a process for that; ask if you need more information.