Tentative Nonconfirmations and the Right to Contest
A mismatch says the records do not agree. It says nothing about whether the employee may work. Between that result and any lawful action by the employer sit a private conversation, a signed notice, a referral, and a period during which the employer must do nothing.
The rule in short
When an electronic verification case returns a mismatch, the employer notifies the employee privately, provides the written further action notice, and lets the employee decide whether to contest. If the employee contests, the employer refers the case and hands over the confirmation stating the employee's deadline. Throughout, the employer may not terminate, suspend, reduce hours, withhold pay or training, or delay a start date. Only a final nonconfirmation permits action.
A mismatch is the result that says two record sets do not agree. It arises from a changed name, an unrecorded status update, a transposed number, or an error in a federal database. It is not a determination about the employee's right to work, and an employer that treats it as one has usually created the only violation in the file.
What the result actually reports
The system compares information from the completed verification form against agency records. When it cannot match, it returns a mismatch and identifies which agency's records are involved. That routing matters only because it determines whom the employee contacts.
Nothing about the result is a finding. Cases return mismatches for authorized workers regularly, and a substantial share are resolved in the employee's favor once the underlying record is corrected. The design assumes this, which is why the process that follows is built around giving the employee an opportunity rather than around confirming a suspicion.
The private notification
The employer notifies the employee as soon as possible, and privately. The written further action notice is provided, and the employer reviews it with the employee, using a language the employee understands where that is possible. The notice explains what the mismatch is, what contesting involves, and what happens if the employee does not contest.
Privacy is a requirement, not a courtesy. Delivering the notice at a shift meeting, leaving it in an open workspace, or discussing it in front of colleagues discloses a status-related fact about an individual and invites a separate claim under the antidiscrimination provisions covered in document abuse and unfair documentary practices.
The choice, and whose it is
The employee decides whether to take action. The employee marks the decision on the notice, both the employee and the employer sign it, and the employer retains it with the verification form. The employer may explain the process. It may not advise the employee which way to decide, and it may not communicate that contesting will be inconvenient for anyone.
Where the employee elects to contest, the employer refers the case and gives the employee the referral confirmation. That document states the period, counted in federal government working days from the referral, within which the employee must contact the agency. The deadline belongs to the employee; the employer's job is to hand over the document and then leave the matter alone.
| Case status | What the employer must do | What the employer may not do | How it ends |
|---|---|---|---|
| Mismatch returned | Notify privately and provide the written notice | Announce it, delay it, or decide for the employee | The employee marks a decision and both sign |
| Employee contests | Refer the case and hand over the confirmation | Contact the agency on the employee's behalf | The agency updates the case after the employee acts |
| Case pending | Employ on identical terms to any other worker | Terminate, suspend, cut hours, or hold pay or training | An authorized result, or a final nonconfirmation |
| Employee declines to contest | Record the decision on the signed notice | Treat silence as a decision | Case closed; a final result issues |
| Final nonconfirmation | Decide whether to terminate | Continue employment without reporting it | Termination, or continued employment reported to the agency |
Employers ask what they can do short of termination while a case is open. The answer is nothing that a comparable employee would not experience. No suspension, no reduction in hours, no delayed start date, no withheld training, no postponed promotion, no change in pay. Managers who quietly stop scheduling a worker believe they have avoided the issue. They have taken the adverse action, they have created a payroll record proving it, and they have done so during exactly the period the rule protects.
Final results, and what they permit
A final nonconfirmation permits the employer to terminate, and terminating on that basis carries the protection the program provides. It does not require termination. An employer that chooses to continue the employment must report that choice to the agency through the system, and in doing so it gives up the presumption that participation otherwise supplies.
That is the real bargain of the program. A case run properly and closed on an authorized result gives the employer a rebuttable presumption that it did not knowingly employ an unauthorized worker. A case run improperly gives it nothing, and a case closed with a report of continued employment converts the file into evidence.
Notice, an opportunity, and a decision
The structure here is deliberately familiar: a party is told what the problem is, told what may follow, given a defined period to respond, and then a decision issues. It is the same architecture that governs any adverse process where the affected person must be heard first, examined in disciplinary hearings: notice, evidence and the standard. What distinguishes this one is that the employer is not the decision-maker at any stage. It notifies, it refers, and it waits.
Employers that handle mismatches badly almost always do so because nobody defined who owns the conversation. The obligations that create that duty in the first place are in the enrollment agreement, set out in enrolling in the electronic verification program, and the paper record that every case is built on is described in the verification form and who signs it, and by when.
One point deserves a closing note. Where a company has already taken action during a pending case, it has an exposure running to two agencies at once, on different statutes, with different limitation periods. That combination is worth putting in front of employment verification counsel before the employee is contacted again, because the next conversation will be evidence in both matters.
Points to carry away
- A mismatch is a record discrepancy, not a determination that the employee lacks authorization.
- The employee must be notified privately and given the written further action notice.
- The decision whether to contest belongs to the employee, and the notice is signed by both.
- A contested case is referred, and the referral confirmation states the employee's own deadline.
- No adverse action of any kind may be taken while the case is unresolved.
- A final nonconfirmation permits termination, and continued employment must be reported.
Questions readers ask
Can an employer keep a worker off the schedule while the case is pending?
No. Reducing hours is an adverse action, and so is moving the employee to unpaid status, postponing a start date, holding back training, or withholding a raise that would otherwise have issued. The prohibition is not limited to termination and it is not satisfied by keeping the person nominally employed. The safest test is whether the employee's terms and conditions would look identical to those of a comparable colleague whose case returned as authorized. If not, the difference is the violation.
What if the employee simply does not respond to the notice?
The employee's decision not to contest is recorded on the notice, both parties sign, and the case is closed on that basis. If the employee neither contests nor declines, the case eventually reaches a final result and the employer may act on it. What the employer may not do is treat silence as a decision before the process has run, or press for an answer in a way that makes contesting seem unwelcome. The signed notice is the evidence that the choice was genuinely offered.
May an employer run a second case to see if the result changes?
No. Creating a duplicate case for the same employee to obtain a different answer is a misuse of the system and is visible in the case history. Where a case was created in error, or created on information that was itself mistyped, the correct route is to close the case with the appropriate reason and create a new one on corrected information. That is a different act from resubmitting the same facts, and the distinction is exactly what a reviewer looks at.
Sources
- E-Verify — EmployersThe program's own account of case results, notices, referrals and prohibited actions.
- E-Verify — Program HomeThe system through which cases are created, referred and closed.
- U.S. Department of Justice — Immigrant and Employee Rights SectionThe office that enforces the prohibition on discriminatory use of verification results.
- Cornell Legal Information Institute — 8 U.S.C. 1324a, Unlawful Employment of AliensThe knowing-employment prohibition that a final result bears on.
- Cornell Legal Information Institute — 8 U.S.C. 1324b, Unfair Immigration-Related Employment PracticesThe discrimination and retaliation provisions that adverse action can trigger.
- U.S. Citizenship and Immigration Services — I-9 CentralThe underlying paper record that the case is built from and filed with.
Lawwise is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
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