Fired Over Tentative Non-Confirmation Letter?
It happens to us all eventually. You hire the next potential all-star team member. You complete the interviews, extend the offer, and receive the background check. Everything is looking good, and you are both anxious to start working together. You gather the on-boarding documents, and within three business days of the hire date you and the candidate complete Form I9. You carefully observe the documents for authenticity with little knowledge or experience in recognizing document forgery and even less on the subject of exactly what the acceptable document variations are from the issuing agencies. You are reluctant to reject documents because this may result in a confrontation, and you might be wrong. I have been in those shoes many times. The standard is “reasonableness”. You are not expected to be a document expert. “Reasonableness”?
I have been completing or supervising the completion of I9 forms since November 6, 1986. My standing joke about the form is that I have never seen one completed correctly. While this may strike you as funny if we share the same odd sense of humor, it is all too true. The paper form is confusing and contains many opportunities for mistakes.
Not being one to leave a problem unsolved, we now offer an excellent electronic I9 form which is much more intuitive than the blank form. The great thing about the electronic form is that it meets and exceeds all requirements for compliance and can be set up to automatically process the E-Verify case for you, if your company is an E-Verify participant.
As an E-Verify Designated Agent, we have a lot of success supporting our clients who utilize our “Electronic I9 integrated with E-Verify” service. The challenges arise when E-Verify does not approve your candidate to work within minutes of submitting the request. The request, which should be completed with the exact information that the candidate used to complete form I9, can result in a Tentative Non-Confirmation (TNC).
What if you receive a Non-Confirmation letter?
In this case, you will print the Further Action Notice and request that your candidate complete the form. The candidate can choose to resolve the case or not resolve the case, then sign and date the form.
- The candidate then has 8 federal government working days to resolve the TNC with the agency named on page one of the further action notice.
- If the candidate chooses that they will not take action to resolve the case, you may terminate their employment.
As always, get legal counsel before terminating anyone’s employment.
The USCIS recently sent out a communication warning employers that they cannot terminate an employee because of a Tentative Non-Confirmation letter.
I do not have any idea how common the practice of firing people because of a TNC has become, but I do know that not only is it potentially illegal, it is a very short-sighted practice.
The vast majority of candidates who receive TNC letters go on to have the status changed to an Employment Authorized status after taking the necessary steps to clear up the TNC.
Getting Form I9 and the E-Verify process right is a challenge at times. With good tools and someone to talk to on occasion, you can easily build audit-proof systems and processes.
Be patient with your TNC’s. The candidate can continue to work while going through the process and you won’t have to start your search for the next superstar all over again!