When E-Verify returns a "denied" status, known officially as a Final Nonconfirmation (FNC), it indicates that the system cannot confirm an employee's work authorization after they have had an opportunity to resolve initial data mismatches.
Upon receiving a Final Nonconfirmation, employers have the option to terminate the employee's employment. If the employer has correctly followed all the steps and procedures outlined by E-Verify, they may terminate employment with no civil or criminal liability. This protection is a key aspect of the E-Verify program, allowing employers to act on the system's determination without legal repercussion, provided they adhere to the established guidelines.
Understanding the Path to a Final Nonconfirmation
An E-Verify "denial" or Final Nonconfirmation isn't an immediate outcome. It's the result of a multi-step process designed to give employees a chance to correct errors in their records.
- Initial E-Verify Submission: After an employee accepts a job offer and completes Form I-9, the employer submits their information to E-Verify.
- Tentative Nonconfirmation (TNC): If the submitted information does not match records from the Department of Homeland Security (DHS) or the Social Security Administration (SSA), E-Verify issues a TNC. This is a preliminary finding, not a final determination.
- Employer's Role During TNC: The employer must inform the employee of the TNC, provide them with a "Further Action Notice," and give them the opportunity to contest the mismatch within eight federal government workdays. During this period, the employer cannot terminate, suspend, delay training, withhold pay, or take any other adverse action against the employee based on the TNC.
- Employee's Role During TNC: The employee must decide whether to contest the TNC. If they choose to contest, they are referred to either the SSA or DHS (or both) to resolve the discrepancy.
- Resolution or Final Nonconfirmation:
- Employment Authorized: If the employee successfully resolves the mismatch with SSA or DHS, E-Verify will update the case status to "Employment Authorized."
- Final Nonconfirmation (FNC): An FNC occurs if the employee chooses not to contest the TNC, fails to visit SSA or DHS within the allotted time, or if, after visiting, their work authorization still cannot be confirmed.
What Happens After a Final Nonconfirmation?
When E-Verify issues a Final Nonconfirmation, specific actions and consequences follow for both the employer and the employee.
For the Employer
- Option to Terminate: The employer is explicitly permitted to terminate the employment of an individual who receives a Final Nonconfirmation. This termination carries no civil or criminal liability, provided the employer has strictly followed all E-Verify program rules and procedures from the initial verification to the FNC.
- Documentation: Employers must properly document the E-Verify case result and the action taken (e.g., termination) in their records, typically alongside the employee's Form I-9.
- No Further Action Required: Once an FNC is received and acted upon, the employer has fulfilled their E-Verify obligations for that individual.
For the Employee
- Inability to Work for That Employer: A Final Nonconfirmation means that, for the purposes of that employment verification, the individual's authorization to work in the U.S. could not be confirmed through E-Verify. Consequently, their employment with that specific employer will likely cease.
- Individual Responsibility: The FNC indicates a potential issue with the employee's immigration or identity records. While E-Verify is for employment verification, it may highlight issues that the individual needs to resolve independently with the relevant government agencies (USCIS, SSA).
Summary of E-Verify Outcomes
The E-Verify system provides clear outcomes at various stages of the verification process:
| E-Verify Status | Description | Employer Action | Employee Impact |
|---|---|---|---|
| Employment Authorized | Employee's information matches government records. | Continue employment. | Work authorized. |
| Tentative Nonconfirmation (TNC) | Initial mismatch with government records. | Must inform employee, provide Further Action Notice, allow 8 federal government workdays for resolution. Cannot terminate or take adverse action. | Must decide to contest or not. If contesting, must visit SSA/DHS within the timeframe. Continues working during this period. |
| Final Nonconfirmation (FNC) | Work authorization cannot be confirmed after TNC resolution attempts, or if the employee did not contest. | May terminate employment with no civil or criminal liability (if all E-Verify procedures were followed). | Work authorization not confirmed for this employer. Employment may be terminated. Individual may need to resolve underlying record issues with relevant government agencies. |
| Case in Continuance | Employee is taking action to resolve a TNC, and more time is needed. | Must allow employee to continue working; cannot take adverse action. | Continues working while resolution is pending. |
It is crucial for employers to adhere strictly to the E-Verify Memorandum of Understanding (MOU) and its guidelines to benefit from the liability protections offered when terminating an employee due to a Final Nonconfirmation.
