One of the new "optional" fields added to the latest version of the Form I-9 has resulted in a new mandatory step for employers participating in E-Verify.
When we received the new, improved Form I-9 for employers to comply with the requirement to verify employment eligibility for their employees, we noticed several new things, including two new “optional” fields for employees to complete in Section 1 for phone number and e-mail address. We now see the practical side effects of these new fields with E-Verify.
On July 1, USCIS announced their newest E-Verify enhancement: Tentative Non Confirmation (TNC) e-mails that will be sent directly to employees (based on the e-mail address provided by employees in Section 1 of the Form I-9). This e-mail lets the employee know that, based on the information the employer entered into the E-Verify system, there is an issue with the data and that their employer should have provided them with a printed copy of that notification. The e-mail also encourages employees to report any non-compliance.
To help ensure that a TNC is not generated due to data entry errors, the E-Verify system does have a “Check Data” step whereby the employer is advised to confirm that they have entered information properly as it did not immediately match SSA or DHS record. From experience, we know that a number of TNCs are generated by data entry errors (or illegible forms, so the end user is entering what it appears the form says based on their best guess). No pressure employers, but data entry and process errors are now going to become glaringly obvious. The timing of the TNC will also undoubtedly cause misunderstandings and confusion unless employees are contacted immediately.
Additionally, this new functionality creates a new requirement for E-Verify employers: If the employee enters an e-mail address on the Form I-9, the employer MUST now enter it into E-Verify.
So what should employers participating in E-Verify do?
1) Be certain that you are complying with your MOU.
2) Never use E-Verify to screen candidates, or in a discriminatory manner. 3) Ensure that any person who is entering cases on your organization’s behalf is trained on E-Verify and the Form I-9 at least annually. 4) Let your new employees know what to expect IN WRITING.
We realize that the Form I-9 already comes with six lengthy pages of instruction, but there is little mention of what happens with the “optional” phone and e-mail fields. When employees complete the Form I-9, be clear that if they include an e-mail in Section 1 that you will be REQUIRED to enter this data into E-Verify and they would be contacted directly by the government in the event that there is any issue with matching records to the DHS and SSA databases.
Note that this new feature does not relieve employers of the obligation to provide employees with a printed version of the Notice of Tentative Non Confirmation. E-Verify employers would be wise to review their current processes as well as employee communications with regard to the Employment Eligibility Verification process and ensure they are doing all they can to reduce the occurrence of procedural errors, and employee concerns or confusion.