[This article is intended to provide guidance to our client companies and may not apply to your situation or be the correct method for closing your case. You should consult resources at the Department of Homeland Security web site for guidance.]
This article applies to your case if:
- A new hire has decided not to contest a Tentative Non-Confirmation (TNC); or
- 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.
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.
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 Nonconfirmation. 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 Nonconfirmation’ 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.
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.
Employing an Unauthorized Worker. Whether the E-Verify result is a Social Security Administration Final Nonconfirmation, DHS Final Nonconfirmation, DHS No Show or the employee decided not to contest a TNC result, we must notify DHS on your behalf that you are choosing not to terminate an employee who received a Final Nonconfirmation 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 if the employee was not authorized to work.
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, however, does NOT make the employee authorized. 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 Nonconfirmation 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.