E-Verify Mismatch Rights: Notice, Deadlines, and Work
An E-Verify mismatch is not a final result. Learn the notice, referral, work-continuation, document-choice, and discrimination rules.
Does an E-Verify Mismatch Mean You Cannot Work?
No. An E-Verify mismatch, also called a Tentative Nonconfirmation, means information from Form I-9 did not match records available to the Department of Homeland Security or Social Security Administration. It is not a final finding that the employee lacks work authorization. The next questions are whether the employer checked the entered information, delivered the required notices, referred the case on time if the employee chose to act, and allowed the process to continue without mismatch-based adverse action.
A Mismatch Can Result From a Record or Entry Error
Current E-Verify guidance lists possible causes such as an employer typing error, a name or status change not updated in government records, incorrect Social Security or immigration information, or a document-verification issue. The employer should review the entered information with the employee before treating the result as a case to refer. Do not assume the cause from citizenship, birthplace, accent, ethnicity, or the document the employee chose for Form I-9.
The Employer Must Give Written Notice and a Choice
E-Verify instructs the employer to notify the employee and complete the mismatch referral process as soon as possible within 10 federal government working days after the mismatch result. The employer should print the Further Action Notice, review it privately, provide a language version when needed, obtain the employee's decision, and give the employee a copy. The employee chooses whether to take action; the employer should not hide the result, make the choice for the employee, or pressure the employee not to proceed.
The Referral Confirmation Sets the Action Deadline
If the employee chooses to act, the employer refers the case and provides the Referral Date Confirmation. Current E-Verify guidance describes eight federal government working days after referral for the employee to contact DHS or visit an SSA field office and begin resolving the mismatch. The confirmation supplies the controlling date and instructions for that case. Keep both notices and record when they were received, signed, and returned.
Work Should Continue While a Timely Case Is Pending
E-Verify says an employee who takes action must be allowed to continue working while the mismatch is resolved. The employer should not terminate or suspend the employee, delay a start or training, reduce hours, withhold or lower pay, or take another adverse action because of the pending mismatch. A separate, legitimate reason may still support an employment decision, so preserve the stated reason, timing, and treatment of comparable employees.
Temporary Case Statuses Are Not Final Nonconfirmations
A case may remain in continuance, need more time for agency review, or require the employer to review and update entered data. E-Verify treats these as temporary statuses. The employer should monitor the case and follow the requested step rather than convert delay or manual review into a final result. Save each status, update, request, and response with its date.
A Final Nonconfirmation Is a Different Result
If the employee does not timely choose or begin the required action, or the agencies cannot confirm authorization after the process, E-Verify may issue a Final Nonconfirmation. That is different from the initial mismatch. E-Verify guidance permits the employer to rely on a Final Nonconfirmation for an employment decision, but the complete record still matters if notice, referral, data entry, discrimination, or another legal protection is disputed.
E-Verify Should Not Be Used Selectively or to Prescreen
Department of Justice guidance says participating employers should use E-Verify consistently without regard to citizenship, immigration status, or national origin. Employers generally should create a case only after the worker accepts an offer and completes Form I-9, and should not use E-Verify to prescreen applicants. A covered federal contract can require cases for certain existing employees, but employees previously verified in E-Verify are exempt from that process and may not be run through E-Verify again. Compare the employer's stated policy with who was actually checked and when.
A Mismatch Does Not Cancel Form I-9 Document Choice
Form I-9 rules generally let an employee choose acceptable documents rather than requiring a particular immigration document. Department of Justice guidance warns against requesting more or different documents, rejecting documents that reasonably appear genuine and relate to the employee, or demanding a DHS-issued document from noncitizens because of citizenship status or national origin. A pending mismatch should not become a shortcut for a new discriminatory document demand.
E-Verify Rules, INA Rights, and Title VII Are Distinct
The E-Verify process governs case handling. The Department of Justice's Immigrant and Employee Rights Section enforces the anti-discrimination provision of the Immigration and Nationality Act, including covered citizenship-status discrimination, national-origin discrimination, unfair documentary practices, and retaliation or intimidation. The EEOC enforces Title VII national-origin protections for covered employers. Coverage, filing routes, deadlines, and remedies differ, and the same facts may require careful claim routing.
Build a Date-by-Date E-Verify Record
Keep the offer and acceptance, Form I-9 instructions, documents you chose to present, the Further Action Notice, Referral Date Confirmation, case number and status history, messages with HR, agency-contact records, schedules, training records, time records, pay stubs, and the written reason for any changed work term. Record when the employer received the mismatch, when notice was given, what choice was made, when the case was referred, the stated action deadline, and what happened before the final result. Retain only material you may lawfully keep.
When to Get a Free Consult
Get a free consult if an E-Verify mismatch was hidden or treated as final, the written notices or referral deadline were not provided, timely action was blocked, work or training stopped while the case was pending, extra documents were demanded, E-Verify was used selectively, or a rights request was followed by retaliation. This article is general information, not legal advice; rights depend on case status, authorization facts, employer coverage, protected status, timing, records, contracts, and applicable federal, state, and local law.
Primary Sources
- E-Verify: DHS and SSA Mismatch ProcessAccessed September 11, 2026
- E-Verify: Employee Rights and ResponsibilitiesAccessed September 11, 2026
- E-Verify: Federal Contractor Existing-Employee RulesAccessed September 11, 2026
- DOJ: Worker Protections in the E-Verify ProcessAccessed September 11, 2026
- DOJ: Form I-9 and E-VerifyAccessed September 11, 2026
- DOJ: Immigrant and Employee Rights SectionAccessed September 11, 2026
- DOJ: 8 USC 1324b Unfair Immigration-Related Employment PracticesAccessed September 11, 2026
- EEOC: National Origin DiscriminationAccessed September 11, 2026
Think You Have a Case?
This article is general information, not legal advice. For a review of your situation, get a free consult with the YesLawyer team.
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