September 30, 2013 IER Technical Assistance Letter on use of E-Verify and SSNVS

U.S. Department of Justice
Civil Rights Division
Office oj Special Counseljor Immigration-Related
Unjair Employment Practices - NYA
950 Pennsylvania Ave, NW
Washington, DC 20530
Main (202) 616-5594
Fax (202) 616-5509
September 30, 2013
BY EMAIL (sweiss@musicroadhotel.com)
Sande Weiss
Music Road Hotel
303 Henderson Chapel Road
Pigeon Forge, TN 37863
Dear Sande Weiss:
Thank you for contacting the Office of Special Counsel for Immigration-Related Unfair
Employment Practices ("OSC"). This is in response to your email to OSC, dated July 31,
2013. We sincerely apologize for the delay in our response. In your email, you ask whether your
company may use socialsecurity.gov and E-Verify after ajob offer is made to ajob applicant but
prior to putting the employee on the schedule "to make sure all employees match their SSN." In
addition, you asked whether "ifE-Verify says there is something wrong with the birthdate," you
can require "the employee to resolve the issue, prior to a working schedule."
OSC enforces the anti-discrimination provision of the Immigration and Nationality Act
("INA"), as amended, 8 U.S.C. § 1324b. The anti-discrimination provision prohibits citizenship
or immigration status discrimination, national origin discrimination, unfair documentary
practices ("document abuse") during the employment eligibility verification (Form 1-9 and E
Verify) processes, and retaliation for filing a charge or asserting rights under the anti
discrimination provision. More information on OSC can be found on our website:
www.justice.gov/crt/about/osc. Although OSC cannot give you an advisory opinion on any set
of facts involving a particular individual or company, we are able to provide some general
guidelines regarding compliance with the anti-discrimination provision of the INA, 8 U.S.C. §
1324b.
E-Verify is an internet-based system that compares information from an employee's Form
1-9 to data from U.S. Department of Homeland Security ("DHS") and Social Security
Administration ("SSA") records to verify the identity and employment eligibility of each newly
hired employee. U.S. Citizenship and Immigration Services ("USCIS"), E-VerifY User Manual
for Employers, M-775 (Sep. 2013), available at http://www.uscis.gov/USCIS/VerificationlE
Verify/E-Verify Native Documents/manual-employer comp.pdf, p. 4 ("E-Verify User
Manual"). According to the memorandum of understanding ("MOU") that an employer using E
Verify must sign an E-Verify query can only be run after an employee completes the Form 1-9.
E-Verify MOU, Art. I, available at www.uscis.gov/USCIS/E-Verify/Customer
Support/Employer MOU (September 2009).pdf. The law provides that the Form I-9's Section 1,

which is to be filled out before Section 2, is completed by the employee at the time of "hire," 8
C.F.R. § 27 4a.2(b )(1 )(i)(A), defined as "commencement of employment of an employee for
wages or other remuneration." 8 C.F.R. § 274a.2(c). However, according to the USCIS
Handbook for Employers, the Form 1-9 may be completed earlier, as long as the person has been
offered and has accepted the job. USCIS Handbookfor Employers, M-274 (Mar. 2013),
available at www.uscis.gov/files/form/m-274.pdf, p. 41.
E-Verify may generate a tentative nonconfirmation ("TNC") response, which means that
the information entered into E-Verify from the Form 1-9 differs from SSA and/or DHS records.
E-Verify User Manual, p. 27. A TNC does not necessarily mean an employee is unauthorized to
work. Id. at 29. For example, an SSA TNC may occur because the employee's date of birth is
incorrect in SSA's records. Id. 	E-Verify requires employers to provide employees with an
opportunity to contest their TNCs, and if the employee chooses to do so, the employee has eight
federal government work days to begin the TNC resolution process. E-Verify MOU, Art. IILA,
~ 1, 3. In addition, an employer may not terminate, suspend, delay training, withhold pay, lower
payor take any other adverse action against an employee based on the employee's decision to
contest a TNC or while the TNC is still pending with DHS or SSA. E-Verify MOU, Art. ILC, ~~
9-10. Therefore, an employer cannot require the employee to resolve the TNC as a condition of
being placed on the working schedule. To the extent that an employee alleges that he or she was
not permitted to continue working based on his or her immigration status or national origin-real
. or perceived-this office would investigate the allegation.
In your email, you also inquire about the use of socialsecurity.gov to ensure that a newly
hired employee's Social Security number "matches." SSA provides a Social Security Number
Verification Service ("SSNVS"), which allows registered users (employers and certain third
party submitters) to verify the names and Social Security Numbers ("SSNs") of employees
against SSA records for payroll purposes. SSA, SSNVS Overview, available at
www.ssa.gov/employer/ssnv.htm. SSA will verify SSNs and names solely to ensure that the
records of current or former employees are correct for the purpose of completing Internal
Revenue Service Form W-2 (Wage and Tax Statement). SSA, SSNVS Handbook, p. 4, available
at http://www.ssa.gov/employer/ssnvshandbk.htm.Itis illegal to use the service to verify SSNs
of potential new hires or contractors. SSNVS Handbook, p. 4. We also direct you to OSC's
Name/Social Security number "No-Match" guidance for employers, available at
http://www.justice.gov/crt/about/osc/pdf/publications/SSA/FAQs.pdf;
http://www.justice.gov/crt/about/osc/pdf/publications/SSA/Employers.pdf. As our guidance
makes clear, a Social Security name/number no-match can result from unreported name changes,
inputting errors, or other reasons, and does not necessarily relate to an individual's immigration
status or employment authorization. Thus, to the extent an employee whose information did not
clear socialsecurity.gov is delayed from working, he or she may allege discrimination in
violation of the anti-discrimination provision.
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We hope this information is helpful. If you have further questions, please contact our employer
hotline at (800) 255-8155.
Sincerely,
SeemaNanda
Deputy Special Counsel
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