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What are my rights as they relate to E-Verify? -- II

Last time, we examined how federal law requires employers to verify the identity and employment eligibility of all new hires -- citizens and non-citizens alike -- via the Form I-9, and how this document is submitted to the E-Verify system, a database run by the Social Security Administration and the Department of Homeland Security.  

We also discussed how new hires should know that they have certain designated rights in relation to this process, and that these rights extend to scenarios in which E-Verify reveals some manner of mismatch between agency records and the data supplied on the Form I-9.    

In the unfortunate event of a mismatch -- referred to as a tentative nonconfirmation -- an employer is legally obligated to supply the affected employee with written notification, and inquire as to whether he or she intends to challenge the discrepancy.

If the employee intends to do so, they will need to indicate as much on the written notification and sign it, returning it to the employer, who must also append their signature. From there, the employer will need to supply the affected employee with a referral letter outlining the steps that must be taken to resolve the matter with both parties signing this document as well.

From there, the affected employee will need to work with the federal agency that reported the mismatch to resolve the confusion. For non-citizens who intend to challenge the tentative nonconfirmation finding of the DHS, experts suggest having certain information at the ready, such as any dates on which their status changed.

Once the matter is effectively resolved, affected employees are advised to report the development to their employer, who should then attempt to run the Form I-9 through E-Verify.  

As for the aforementioned rights, employers are expressly prohibited from taking any sort of adverse employment action against the affected employee during the process of challenging a tentative nonconfirmation.

This includes limiting employment, withholding pay or training, suspension or termination. Indeed, termination based on E-Verify only becomes an option when the employer receives a final tentative nonconfirmation or the employee elects not to contest the findings of the tentative nonconfirmation.  

Here's hoping the foregoing information has provided some much-needed insight into what can sometimes prove to be a confusing process for non-citizen workers …

Please consider speaking with a skilled legal professional if you have questions or concerns related to E-Verify, or other immigration-related employment matters.

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