Potential Delays in E-Verify Caused by I-94 Automation

The I-94 card system is undergoing the automation process by he U.S. Customs and Border Protection (CBP). Eventually, this will lead to the end of paper I-94 cards for foreign national travelers. Delays in I-94 data entry are creating problems in the widely-used E-Verify system for employer verification of employment authorization for prospective employees.

CBP’s I-94 Automation Causes Employment Verification Delays

As of October 2012, once a foreign national enters the United States, a period of 30 days or longer is required for the individual’s information to be entered into the CBP’s I-94 database. While paper I-94 cards continue to be issued by CBP, the I-94 card information is not immediately available in the appropriate E-Verify database.

This lag between a foreign national’s physical entry into the United States and the data entry into the I-94 database, means that the individual’s information is not available for verification with the Department of Homeland Security (DHS). This unavailability impacts the USCIS’s E-Verify system in particular. E-Verify enables employers to confirm the employment eligibility of new employees when completing the required I-9 forms. While participation in E-Verify is primarily optional, there are some employers (primarily government contractors), who are required to participate. The E-Verify program was discussed in detail in our NewsBrief, E-Verify Self-Assessment Guides for Employers (21.Aug.2012).

Lack of I-94 Data May Lead to TNCs

A tentative non-confirmation (TNC) may result from the lack of I-94 card information in the DHS database when a recent arrival to the United States is processed through the E-Verify system. A TNC does not mean that the new hire is not authorized to work in the U.S. It simply means that E-Verify can neither confirm nor verify that the individual is currently work-authorized. Such TNCs can cause substantial complications and delays in employment for the foreign national and the employer verifying employment eligibility.

Two Kinds of TNCs

There are two kinds of TNCs. The first is an SSA TNC, which means that the individual’s information could not be verified by the Social Security Administration. The second type, which can be caused by the I-94 automation delay, is a DHS TNC. A DHS TNC can occur when the I-94 card information entered into E-Verify is not yet updated from CBP’s computer systems. However, the matter must be addressed within strict timelines, as explained below.

TNCs Can Be Contested or Employment Must be Terminated

Once the E-Verify system issues a TNC, the foreign national has the option of contesting the lack of verification. In that event, the employer should generate a referral to the DHS. This gives instructions to the individual about contacting DHS and resolving the problem. Once the employer generates the referral, the foreign national has eight business days to contact the DHS. If contact is not made during this time, the TNC will become a DHS No Show or Final Non-Confirmation and the employment must terminate.

Science and IT Industry Employers Affected

Besides federal contractors and others serving government clients, employers in the science, technology, engineering and math (STEM) fields may be affected by this problem to a greater extent. Many employers in this sector are enrolled in E-Verify in order to qualify to employ students who benefit from Optional Practical Training (OPT) extensions under the STEM program. The STEM extension option, which allow students to work on OPT for 29 months instead of the standard 12 months, was explained in our June 11, 2012 MurthyDotCom NewsBrief entitled Expanded List of STEM Eligible Degrees Announced. E-Verify participating-employers who hire STEM OPT workers or H1B workers may receive a TNC report if they seek to hire the worker soon after the worker enters the U.S.

Conclusion

While we at the Murthy Law Firm appreciate the continuing work by DHS and CBP to further automate their systems, the unintended consequences of delays and issuances of TNCs can cause hardship to both employers and employees. The current delays in the system should be resolved quickly, so that such problems can be kept to a minimum. Changes to I-94 cards and the E-Verify system will be monitored and reported to MurthyDotCom readers.

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