ATTORNEY-CLIENT PRIVILEGED / ATTORNEY WORK PRODUCT — DO NOT DISTRIBUTE WITHOUT PRIOR AUTHORIZATION
MEMORANDUM
TO: Samantha Kowalski, Director of Human Resources, Optiwave Semiconductor Corp.
FROM: Megan Chu, Lead Associate, Calderwood & Harkness LLP
DATE: May 30, 2025
RE: E-Verify Standard Operating Procedures — Optiwave Semiconductor Corp. (Company ID: 1487623)
CC: Rajesh Anand, Immigration Program Manager, OWS Patricia Langford, General Counsel, OWS Derek Okonkwo, Working Associate, Calderwood & Harkness LLP Dr. Lena Marchetti, Of Counsel, Calderwood & Harkness LLP Tanya Benavides, Paralegal, Calderwood & Harkness LLP
Engagement Reference: SC-OWS-2025-0520-IMM
Classification: Attorney-Client Privileged / Attorney Work Product
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I. Purpose and Scope
The purpose of this memorandum is to establish comprehensive standard operating procedures ("SOPs") for Optiwave Semiconductor Corp. ("OWS" or the "Company") in connection with its use of the E-Verify system to verify the employment eligibility of all new hires. These SOPs are designed to ensure that OWS's E-Verify practices are consistent, compliant with all applicable federal requirements, and integrated with the Company's broader immigration compliance program. The procedures set forth herein reflect current E-Verify rules, regulatory guidance, and best practices as of the date of this memorandum and should be reviewed periodically as described in Section XII below.
These SOPs apply to all OWS worksites, including:
• Site A — San Jose Headquarters: 4820 Veltrano Parkway, Suite 300, San Jose, CA 95134 (approximately 210 employees);
• Site B — Austin Design Center: 7600 Spectrum Drive, Building 4, Austin, TX 78729 (approximately 65 employees);
• Site C — Portland Test Facility: 1425 Northwest Couch Street, Suite 200, Portland, OR 97209 (approximately 40 employees); and
• Remote Employees: All employees classified as remote workers regardless of geographic location (approximately 25 employees).
The Company's total current workforce is approximately 340 employees. These procedures apply to all new hires at every worksite and in every employment classification, including the twelve (12) FY2026 pipeline candidates currently in various stages of immigration petition processing with Calderwood & Harkness LLP, as well as any future hires made during the effective period of these SOPs.
For reference, the Company's E-Verify Company ID is 1487623, and its Federal Employer Identification Number ("FEIN") is 82-4931076. These identifiers should be verified each time an E-Verify administrator accesses the system to confirm the correct employer account is in use.
This memorandum is intended to supplement — not replace — the separate I-9 Compliance Audit Plan & Checklist (dated April 15, 2025) and the Employee Immigration Status Tracking Policy (dated March 1, 2025), both of which have been previously provided to OWS. The three documents, taken together, constitute the core framework of OWS's employment eligibility verification compliance program. To the extent any inconsistency exists between this memorandum and either of those documents, OWS should consult Calderwood & Harkness for clarification before proceeding.
These SOPs also address coordination with Sentinel Background Verification Corp. ("Sentinel BV"), the Company's third-party background screening vendor. Tyler Ng, Sentinel BV's Account Lead for the OWS relationship, serves as the primary point of contact for integrated background check and E-Verify workflows. The specific protocols governing data flow, responsibilities, and confidentiality between OWS and Sentinel BV are addressed in detail in Section IX.
Finally, it bears noting that OWS operates within the semiconductor and related device manufacturing industry (NAICS Code 334413), specializing in photonic integrated circuit design and fabrication for data center interconnects. This is a sector characterized by a highly specialized workforce, significant reliance on foreign national talent, and heightened regulatory scrutiny with respect to export controls and immigration compliance. Accordingly, the rigorous E-Verify procedures outlined in this memorandum are not merely a regulatory formality but a critical component of the Company's risk management framework.
II. E-Verify Program Overview
A. Legal Framework
E-Verify is an internet-based system jointly operated by U.S. Citizenship and Immigration Services ("USCIS") and the Social Security Administration ("SSA"). The system enables participating employers to electronically verify the employment eligibility of newly hired employees by comparing information provided by the employee on the Employment Eligibility Verification form (Form I-9) against records maintained by the Department of Homeland Security ("DHS") and SSA. The system is designed to confirm that an employee is authorized to work in the United States.
The legal basis for the E-Verify program derives from the employer sanctions provisions of the Immigration and Nationality Act ("INA"), specifically INA § 274A, codified at 8 U.S.C. § 1324a, which imposes upon all employers the obligation to verify the identity and employment authorization of individuals hired for employment in the United States. The E-Verify program is governed by a Memorandum of Understanding ("MOU") executed between USCIS, SSA, and the participating employer. The MOU sets forth the employer's rights and responsibilities as an E-Verify participant, including the obligation to use the system for all new hires (once enrolled), to follow all E-Verify rules and procedures, and to refrain from discriminatory or pre-screening uses of the system.
OWS participates in E-Verify on a voluntary basis. While E-Verify is mandatory for certain categories of employers — including federal contractors subject to the FAR E-Verify clause (FAR 52.222-54), employers in states with mandatory E-Verify legislation (such as Arizona, Mississippi, Alabama, and others), and employers hiring employees in certain local jurisdictions with E-Verify mandates — OWS's participation is not currently compelled by any federal or state requirement applicable to its operations. Rather, the Company has elected to enroll in E-Verify as a best practice to enhance its immigration compliance posture, reduce exposure to I-9-related liability, and demonstrate good faith in verifying workforce authorization.
It is critical to understand that E-Verify supplements but does not replace the Form I-9 process. The Form I-9 remains the foundational employment eligibility verification requirement under federal law, and every employer — whether or not enrolled in E-Verify — must complete and retain a Form I-9 for each employee hired. The E-Verify process is an additional verification layer that relies on the information already collected through the Form I-9.
B. OWS Enrollment Details
The following summarizes OWS's current E-Verify enrollment information:
Both designated E-Verify program administrators maintain current user accounts within the E-Verify system with active login credentials. In accordance with USCIS recommendations and general cybersecurity best practices, account passwords should be updated at regular intervals — no less frequently than every ninety (90) days — and should comply with complexity requirements (minimum of eight characters, including uppercase letters, lowercase letters, numbers, and special characters). Under no circumstances should E-Verify login credentials be shared between administrators, with other OWS personnel, or with any third-party vendor, including Sentinel BV.
OWS's E-Verify enrollment also supports integration with Sentinel BV's HR information systems to facilitate seamless onboarding workflows. The nature and limitations of this integration are described in detail in Section IX of this memorandum. Importantly, while data may flow between OWS's internal systems and Sentinel BV's platform for background screening purposes, E-Verify case creation, case management, and access to case results remain exclusively within the purview of OWS's designated administrators.
III. Relationship Between Form I-9 and E-Verify
The relationship between the Form I-9 process and E-Verify is sequential and interdependent. Understanding this relationship is essential to ensuring that OWS's onboarding workflow complies with all applicable requirements. The following principles govern the interaction between the two processes:
1. E-Verify follows Form I-9. An E-Verify case must be created only after the employer (or authorized representative) has completed Section 2 of Form I-9. Section 2 is the portion of the form in which the employer examines the employee's identity and employment authorization documents and records the relevant document information. Until Section 2 is complete, there is no basis upon which to create an E-Verify case, and premature case creation constitutes a violation of E-Verify program rules.
2. Hire and start of work prerequisite. No E-Verify case may be created before the employee has been hired and has actually commenced work for OWS. An individual who has received a conditional or unconditional offer of employment but has not yet begun working is not yet an "employee" for E-Verify purposes. Creating a case for such an individual would constitute impermissible pre-screening, which is strictly prohibited under the E-Verify MOU and applicable anti-discrimination laws.
3. Prohibition on pre-screening. The E-Verify process must not be used to pre-screen applicants or candidates prior to an offer of employment. This prohibition extends to all stages of the hiring process, including initial application review, interviews, reference checks, and post-offer/pre-start verification. The E-Verify system is designed exclusively for post-hire verification and may not be used for any other purpose.
4. Verification of Form I-9 information only. E-Verify verifies the information already provided by the employee on Form I-9. It does not independently verify immigration status for purposes unrelated to employment eligibility verification, and it may not be used to check the status of current employees (except in limited circumstances, such as when a new Form I-9 is completed in connection with reverification).
5. Form I-9 completion deadline. All new hires must complete Section 1 of Form I-9 no later than the first day of employment. The employer must complete Section 2 no later than the end of the third business day after the employee's first day of employment. The E-Verify case must be initiated promptly after Section 2 is completed, subject to the timing requirements set forth in Section IV below.
These principles apply uniformly to all OWS worksites and all categories of new hires, without exception. Any deviation from these principles, even if inadvertent, could expose the Company to liability under both E-Verify program rules and federal anti-discrimination statutes. Accordingly, all OWS personnel involved in the hiring and onboarding process should be familiar with these foundational requirements.
IV. Case Creation Timeline and Procedures
A. Timing Requirements
Under E-Verify program rules, an E-Verify case must be created no later than the third business day after the employee's first day of employment. This is the same deadline that applies to the completion of Section 2 of Form I-9. Because E-Verify case creation depends upon information recorded in Section 2, the two deadlines are functionally concurrent.
For purposes of OWS's internal workflow, the HR team should aim to create the E-Verify case on the same day that Section 2 of Form I-9 is completed. Creating the case immediately upon completion of Section 2 minimizes the risk of delayed case creation, ensures that any system issues or data entry problems are identified promptly, and allows more time to address any Tentative Nonconfirmation ("TNC") that may result.
In the event that case creation is delayed beyond the three-business-day deadline — whether due to system outage, administrative error, absence of the designated E-Verify administrator, or any other reason — the delay must be documented with a written explanation. The documentation should include the employee's name, the date of hire, the date Section 2 of Form I-9 was completed, the date the E-Verify case was ultimately created, and the specific reason for the delay. This documentation must be reported to Rajesh Anand immediately and retained in the employee's E-Verify file. Rajesh Anand will assess whether the delay warrants notification to Calderwood & Harkness for further guidance.
It is important to note that E-Verify system outages are not uncommon. USCIS periodically takes the E-Verify system offline for maintenance, and unscheduled outages may occur. If the system is unavailable during the three-business-day case creation window, OWS should document the outage (e.g., by taking a screenshot of the unavailability notice) and create the case as soon as the system becomes available. System outages documented in this manner generally constitute an acceptable reason for delayed case creation.
B. Step-by-Step Case Creation Process
The following step-by-step procedure governs the creation of E-Verify cases for all OWS new hires:
Step 1: Confirm Form I-9 Section 2 Completion. Before initiating the E-Verify process, the E-Verify administrator must confirm that Section 2 of the employee's Form I-9 has been fully and accurately completed by an authorized OWS representative. This includes verification that all required document information has been recorded, that the certifying representative has signed and dated Section 2, and that the form is free of errors or omissions that could affect E-Verify data entry.
Step 2: Log In to the E-Verify System. Access the E-Verify system at https://e-verify.gov using the OWS Company ID 1487623 and the administrator's individual login credentials. Verify that the correct employer account is displayed before proceeding.
Step 3: Select "Create New Case." From the E-Verify dashboard, select the option to create a new case. The system will prompt the administrator to enter the required employee and document information.
Step 4: Enter Employee Information. Enter the employee's information exactly as it appears on Section 1 of Form I-9. This includes:
(a) Full legal name (last name, first name, middle initial, if any);
(b) Date of birth;
(c) Social Security Number;
(d) Citizenship/immigration status attestation (i.e., whether the employee attested to being a U.S. citizen, a noncitizen national of the United States, a lawful permanent resident, or an alien authorized to work).
It is essential that the information entered into E-Verify matches the information on Form I-9 exactly. Even minor discrepancies — such as a transposed digit in the Social Security Number, a misspelled name, or an incorrect date of birth — can trigger a Tentative Nonconfirmation. The administrator should carefully review all entries before submitting the case.
Step 5: Enter Document Information. Enter the document information from Section 2 of Form I-9, including:
(a) Document title (e.g., U.S. Passport, Permanent Resident Card, Employment Authorization Document, state-issued driver's license, unrestricted Social Security card, etc.);
(b) Issuing authority;
(c) Document number;
(d) Expiration date (if applicable).
Step 6: Complete Photo Matching (If Applicable). If the employee presented a U.S. Passport, U.S. Passport Card, Permanent Resident Card (Form I-551), or Employment Authorization Document (Form I-766) that contains a photograph, E-Verify will prompt the administrator to complete the photo matching step. The photo matching procedures are described in detail in Section VI of this memorandum.
Step 7: Submit the Case and Record the Case Verification Number. Upon completing data entry and any required photo matching, submit the case. E-Verify will assign a unique case verification number. This number must be recorded in OWS's internal tracking system (currently the Company's HRIS platform) and in the employee's personnel file. The case verification number serves as the primary reference for tracking the case through resolution.
C. Verification Results — Initial Outcomes
Upon submission of an E-Verify case, the system will return one of several possible initial results. The following describes each possible outcome and the required response:
Employment Authorized. A result of "Employment Authorized" indicates that the employee's information matches government records and that the employee is confirmed as authorized to work in the United States. When this result is received, the case is closed. No further action is required. The E-Verify administrator should print or save an electronic copy of the case result confirmation and retain it in the employee's E-Verify file.
E-Verify Needs More Time / USCIS or SSA Processing. In some cases, E-Verify may indicate that additional time is needed for USCIS or SSA to process the case. This status does not indicate a problem and does not reflect adversely on the employee's work authorization. While the case remains in this status, the employee must be permitted to continue working without any adverse action. The E-Verify administrator should check the case status regularly — at a minimum, every three (3) business days — until a final result is returned. The system will update automatically when processing is complete.
Tentative Nonconfirmation (TNC). A TNC result indicates that the information entered into E-Verify does not initially match records available to SSA and/or DHS. Receipt of a TNC triggers specific procedural obligations that are described in detail in Section V of this memorandum. A TNC must be addressed promptly; failure to follow TNC procedures correctly can result in E-Verify program violations and potential liability.
DHS No Show / Case in Continuance. In certain cases, the system may return a "DHS No Show" or "Case in Continuance" status. These statuses arise in specific circumstances and are governed by USCIS guidance applicable to the particular case. The E-Verify administrator should follow the on-screen instructions provided by the E-Verify system and, if necessary, consult with Calderwood & Harkness for guidance.
D. Documenting Case Results
Proper documentation of E-Verify case results is essential for both compliance and audit readiness purposes. The following documentation requirements apply to all E-Verify cases:
1. All E-Verify case results — whether Employment Authorized, TNC, Final Nonconfirmation, or any other outcome — must be printed or saved electronically in a durable format (e.g., PDF).
2. The case verification number assigned by E-Verify must be recorded alongside the employee's Form I-9, either on the form itself (in the additional information field or on a separate attachment) or in the Company's electronic tracking system, so that the E-Verify case can be easily cross-referenced with the corresponding I-9.
3. E-Verify case results and supporting documentation must be stored in a secure, confidential file that is separate from general personnel records. Access to E-Verify files should be limited to the designated E-Verify administrators and, as needed, the General Counsel and outside immigration counsel.
4. The retention period for E-Verify records mirrors the retention period for Form I-9: three (3) years after the date of hire or one (1) year after the date employment terminates, whichever is later. Records should not be destroyed before the expiration of the applicable retention period.
5. Upon expiration of the retention period, E-Verify records should be securely destroyed in accordance with OWS's document retention and destruction policy.
V. Tentative Nonconfirmation (TNC) Procedures
A. Overview. A Tentative Nonconfirmation ("TNC") is a case result indicating that the information entered into E-Verify does not initially match records available to SSA or DHS. TNCs are not uncommon and can arise from range causes, including data entry errors, name changes that have not been updated in government records, typographical errors on identity documents, system processing delays, and other benign reasons.
It is critically important that all OWS personnel understand the following: a TNC does NOT mean that the employee is unauthorized to work in the United States. A TNC is a preliminary finding that requires further verification. The employee must be given a full and fair opportunity to contest the TNC and resolve any discrepancy with the relevant government agency.
OWS must not take any adverse employment action based on a TNC. Adverse employment action includes, but is not limited to, the following:
• Termination of employment;
• Suspension or placement on unpaid leave;
• Reduction in hours, pay, or benefits;
• Delay in training, orientation, or onboarding activities;
• Change in job assignment, work location, or reporting structure;
• Any other action that negatively affects the terms or conditions of employment.
The prohibition on adverse action applies from the moment a TNC is received through the conclusion of the contest and referral process (if the employee elects to contest) or until a Final Nonconfirmation is issued (if the employee elects not to contest or fails to resolve the TNC within the prescribed timeframe).
B. Notification to Employee
Upon receiving a TNC, the designated E-Verify program administrator must promptly notify the employee. Notification should occur in a private setting — not in the presence of coworkers, supervisors, or other individuals who do not need to be aware of the E-Verify case outcome. The notification must occur within the timeframe specified by E-Verify, which is generally the same day the TNC is received or the next business day at the latest.
The notification process consists of the following steps:
1. Provide the Further Action Notice (FAN). The E-Verify system automatically generates a Further Action Notice ("FAN") whenever a TNC is issued. The administrator must print the FAN and present it to the employee. The FAN is available in English and Spanish; if the employee's primary language is neither English nor Spanish, the administrator should arrange for an interpreter or use translated materials available from USCIS to ensure the employee understands the contents of the notice. The FAN requirements are discussed further in Section VII.
2. Explain the FAN contents. Using plain, non-technical language, the administrator must explain to the employee:
(a) That there is a mismatch between the information provided on Form I-9 and the records maintained by SSA or DHS;
(b) That the mismatch does not necessarily mean the employee is unauthorized to work;
(c) That the employee has the right to contest the TNC;
(d) That if the employee chooses to contest, the employee must contact SSA (for an SSA TNC) or call the USCIS E-Verify hotline (for a DHS TNC) within eight (8) federal government working days from the date the employee is notified of the TNC;
(e) That if the employee chooses not to contest the TNC, or fails to take action within the prescribed timeframe, the case will result in a Final Nonconfirmation, and OWS may terminate employment based on that outcome.
3. Obtain the employee's decision. The employee must sign and date the FAN, indicating whether the employee chooses to contest or not contest the TNC. This decision is the employee's alone; OWS personnel must not coerce, encourage, or discourage the employee in either direction.
4. Refer the case (if contesting). If the employee chooses to contest the TNC, the administrator must refer the case in E-Verify to SSA or DHS, as applicable, and provide the employee with the referral instructions generated by the system.
C. SSA TNC Process
If the TNC originates from SSA (i.e., an SSA TNC), and the employee elects to contest, the following procedures apply:
1. The employee must visit a local SSA office within eight (8) federal government working days of being notified of the TNC to resolve the mismatch. Federal government working days exclude weekends, federal holidays, and any days on which SSA offices are closed.
2. OWS must allow the employee reasonable time to visit the SSA office during working hours. This may include permitting the employee to take paid or unpaid time off, adjusting the employee's schedule, or otherwise accommodating the employee's need to visit SSA. OWS should not penalize the employee for time spent resolving the TNC.
3. The employee continues working with no adverse action during the entire referral and resolution process.
4. The E-Verify administrator should monitor the E-Verify system for case updates. SSA typically resolves TNC referrals within approximately ten (10) federal government working days after the employee visits the SSA office, though resolution times may vary.
5. Upon resolution, the E-Verify system will update the case status to either "Employment Authorized" or "Final Nonconfirmation." The administrator should check the case status at least every three (3) business days during the pendency of the referral.
D. DHS TNC Process
If the TNC originates from DHS (i.e., a DHS TNC), and the employee elects to contest, the following procedures apply:
1. The employee must contact USCIS as instructed on the FAN within eight (8) federal government working days of being notified of the TNC. Contact is typically made by calling the USCIS E-Verify hotline or by visiting a USCIS field office, as directed.
2. The employee continues working during the referral period with no adverse action.
3. The E-Verify administrator should monitor the E-Verify system for case updates and check the case status at least every three (3) business days.
4. DHS TNC referrals may take longer to resolve than SSA TNC referrals, depending on the nature of the mismatch and the complexity of the underlying immigration records. The administrator should be patient and allow the process to proceed without pressuring the employee or taking any adverse action.
E. Final Nonconfirmation
A Final Nonconfirmation results when a TNC is not successfully resolved. This may occur because:
• The employee elected not to contest the TNC;
• The employee failed to contact SSA or DHS within the eight-day referral period;
• SSA or DHS was unable to verify the employee's employment authorization after the employee contested the TNC.
Upon receipt of a Final Nonconfirmation, OWS must terminate the employee's employment. Continued employment of an individual who has received a Final Nonconfirmation is a violation of E-Verify program rules and may expose the Company to liability under the employer sanctions provisions of the INA.
The termination should be documented clearly, with the reason for termination recorded as "E-Verify Final Nonconfirmation." The documentation should include the E-Verify case verification number, the dates of the TNC notification and referral, the employee's decision to contest or not contest, and the date the Final Nonconfirmation was received.
Special escalation requirement: If any current visa holder — including any H-1B or O-1 nonimmigrant worker — receives a Final Nonconfirmation, OWS must notify Calderwood & Harkness immediately. Specifically, Samantha Kowalski or Rajesh Anand should contact Megan Chu or Dr. Lena Marchetti by telephone on the same business day the Final Nonconfirmation is received. A Final Nonconfirmation for a visa holder may implicate the validity of the underlying petition, may trigger USCIS reporting obligations, and may have implications for the employee's immigration status, potential reentry to the United States, and future petition filings. Calderwood & Harkness will assess the situation and advise on next steps.
F. Special Considerations for Visa Holders
OWS currently employs fourteen (14) H-1B nonimmigrant workers (eleven at San Jose, two at Austin, and one at Portland) and four (4) O-1 nonimmigrant workers (all at San Jose). These employees may be subject to E-Verify verification upon initial hire or, in certain circumstances, when a new Form I-9 is completed — for example, after a change of status (such as a transition from F-1 OPT to H-1B status) or upon approval of a new petition that requires reverification.
TNCs involving visa holders present heightened risk and complexity. A TNC for an H-1B or O-1 worker may be caused by timing issues in USCIS records (e.g., a recently approved petition that has not yet been reflected in the USCIS database queried by E-Verify), data entry discrepancies between the petition and E-Verify records, or other factors specific to nonimmigrant visa categories.
Accordingly, any TNC received for an H-1B or O-1 visa holder at OWS should be escalated immediately to Rajesh Anand and to Calderwood & Harkness for assessment. The standard TNC procedures described in Sections V.B through V.D above still apply, but outside counsel should be consulted before any referral is made to ensure that the referral process accounts for the employee's specific immigration circumstances.
VI. Photo Matching Procedures
A. When Photo Matching Applies
The E-Verify system includes a photo matching feature that is triggered automatically when an employee presents certain photo-bearing documents for purposes of Form I-9, Section 2 verification. Specifically, E-Verify will prompt the photo matching step when the employee presents any of the following documents:
• U.S. Passport or U.S. Passport Card;
• Permanent Resident Card (Form I-551); or
• Employment Authorization Document (Form I-766).
When photo matching is triggered, the E-Verify system will display the photograph from government records associated with the document presented by the employee. The administrator must then compare this system-generated photograph to the photograph appearing on the physical (or electronic) document presented by the employee.
Photo matching is not triggered for other categories of Form I-9 documents, such as state-issued driver's licenses, state-issued identification cards, Social Security cards, birth certificates, or other List B or List C documents.
B. Comparison Process
The photo matching comparison must be conducted as follows:
1. The E-Verify administrator must compare the photograph displayed by the E-Verify system to the photograph on the document presented by the employee.
2. The administrator must determine whether the two photographs reasonably depict the same person. Minor differences in appearance — such as hairstyle changes, aging, weight fluctuation, or the presence or absence of eyeglasses — should not be treated as a mismatch, provided the photographs otherwise reasonably appear to depict the same individual.
3. If the photographs match (i.e., they reasonably appear to depict the same person), the administrator should select "Yes" in the E-Verify system to confirm the match. The case will continue processing.
4. If the photographs do not match (i.e., they do not reasonably appear to depict the same person), the administrator should select "No" in the E-Verify system. Selecting "No" will generate a DHS Tentative Nonconfirmation, which triggers the TNC procedures described in Section V of this memorandum.
5. Critical instruction: The administrator must not compare the E-Verify system photograph to the employee's physical appearance. The comparison is strictly between the photograph displayed by the E-Verify system and the photograph on the document presented by the employee. Comparing the system photograph to the employee's physical appearance is not part of the E-Verify process and could give rise to claims of discrimination based on appearance, national origin, or other protected characteristics.
C. Documentation. The following documentation requirements apply to the photo matching process:
1. The E-Verify administrator should note in the E-Verify case record whether photo matching was performed and, if so, the outcome of the comparison (match or no match).
2. The administrator should retain a copy of the photo match screen — either by printing the screen or by taking an electronic screenshot — in the employee's E-Verify file. This documentation serves as evidence that the photo matching step was performed and may be useful in the event of a subsequent audit or inquiry.
3. If a photo match results in a DHS TNC, all documentation related to the TNC and subsequent referral process (including the FAN) should be maintained in the same file as the photo match documentation.
VII. Further Action Notice (FAN) Requirements
A. When a FAN Is Generated
The E-Verify system automatically generates a Further Action Notice ("FAN") whenever a Tentative Nonconfirmation is issued, regardless of whether the TNC originates from SSA or DHS. The FAN is a standardized notice that explains the TNC to the employee, outlines the employee's rights, and provides instructions for contesting the finding.
The FAN is available in multiple languages, including English and Spanish. Translated versions of the FAN may be available for other languages through the E-Verify system or the USCIS website. If the employee's primary language is not covered by an available translation, OWS should arrange for an interpreter to explain the FAN contents verbally.
B. Employer Obligations
Upon generation of a FAN, OWS is required to take the following actions:
1. Print the FAN. The E-Verify administrator must print the FAN from the E-Verify system. A copy should be printed for the employee and a copy should be retained for OWS's records.
2. Present the FAN to the employee privately and promptly. The FAN must be presented to the employee in a private setting — away from coworkers and supervisors who do not need to know about the E-Verify case outcome. The FAN must be presented on the same day the TNC is received or on the next business day at the latest. Unreasonable delay in presenting the FAN to the employee is a violation of E-Verify program rules.
3. Explain the FAN contents. The administrator must explain the contents of the FAN to the employee using plain, non-technical language. The explanation should cover:
(a) The nature of the TNC (i.e., that there is a mismatch between the employee's Form I-9 information and government records);
(b) The employee's right to contest or not contest the TNC;
(c) The specific steps the employee must take if choosing to contest (i.e., visiting SSA for an SSA TNC or contacting USCIS for a DHS TNC);
(d) The eight-federal-government-working-day deadline for contesting;
(e) The consequences of not contesting (i.e., Final Nonconfirmation and potential termination).
If the employee requires language assistance, an interpreter may be used. The interpreter should be a neutral party and should not be the employee's direct supervisor or a coworker with whom the employee has a reporting relationship.
4. Obtain the employee's signature. The employee must sign and date the FAN, indicating whether the employee chooses to contest or not contest the TNC. If the employee refuses to sign the FAN, the administrator should note on the FAN that the employee was presented with the notice, that the contents were explained, and that the employee declined to sign. The date and time of the presentation should also be noted.
5. Refer the case (if contesting). If the employee indicates that they wish to contest the TNC, the administrator must refer the case in E-Verify to the appropriate agency (SSA or DHS) and provide the employee with the referral instructions generated by the system. The referral instructions include information about how to contact the relevant agency and what documentation the employee may need to bring.
6. Retain the signed FAN. The original signed FAN must be retained in the employee's E-Verify case file. The FAN is a critical document for audit and compliance purposes and should be maintained for the full retention period described in Section XI.
7. Do not take adverse action. OWS must not take any adverse employment action based on the TNC while the employee's contest period is open or while the referral to SSA or DHS is pending. This prohibition remains in effect until the case is resolved with either an "Employment Authorized" result or a Final Nonconfirmation.
VIII. Prohibition on Pre-Screening and Discriminatory Practices
A. Pre-Screening Prohibition
OWS must not use the E-Verify system to pre-screen job applicants or candidates at any stage of the hiring process before a bona fide offer of employment has been made, accepted by the candidate, and the candidate has commenced work. The pre-screening prohibition is a cornerstone of the E-Verify program and is explicitly set forth in the E-Verify MOU.
E-Verify cases may only be created after:
(a) The employee has been hired;
(b) The employee has started work (i.e., has begun performing services for compensation);
(c) The employee has completed Section 1 of Form I-9; and
(d) The employer has completed Section 2 of Form I-9.
Running E-Verify checks on any of the following categories of individuals is strictly prohibited:
• Job applicants (whether or not they have been interviewed);
• Interview candidates (whether before or after the interview);
• Individuals who have received an offer of employment but have not yet accepted;
• Individuals who have accepted an offer of employment but have not yet started work;
• Current employees (except in the limited circumstances described in Section X.B below, where a new Form I-9 is completed).
Any OWS employee or agent who creates an E-Verify case in violation of the pre-screening prohibition should report the error immediately to Samantha Kowalski and Rajesh Anand, who will consult with Calderwood & Harkness to determine appropriate corrective action.
B. Non-Discrimination Requirements
OWS must not discriminate against employees or applicants based on national origin, citizenship status, or immigration status in connection with the E-Verify or I-9 process. The anti-discrimination provisions of INA § 274B (8 U.S.C. § 1324b) prohibit, among other things:
• Citizenship or immigration status discrimination in hiring, firing, or recruitment;
• National origin discrimination in hiring, firing, or recruitment (for employers with four to fourteen employees; for larger employers, national origin discrimination is also covered by Title VII of the Civil Rights Act of 1964);
• Document abuse, which includes requesting specific documents from employees, requesting more documents than required, rejecting documents that reasonably appear genuine and relate to the employee, or treating employees differently based on the documents they choose to present.
In the context of the E-Verify and I-9 process, the following specific requirements apply:
1. No document demands. OWS must not request specific documents from employees. Employees have the right to choose which acceptable documents to present for Form I-9 purposes from the lists of acceptable documents published by USCIS. OWS may not insist that an employee present a particular document (e.g., a U.S. Passport, a green card, or a specific combination of List B and List C documents).
2. Acceptance of genuine documents. OWS must not refuse to accept documents that reasonably appear to be genuine on their face and that relate to the employee presenting them. The employer's obligation is to examine the documents and determine whether they reasonably appear genuine; the employer is not required to be a document fraud expert.
3. Equal treatment regardless of E-Verify outcome. OWS must not treat employees differently based on the E-Verify case outcome — for example, by delaying start dates, restricting job duties, or placing employees on provisional status based on a pending E-Verify case — except as specifically required by law (e.g., termination following a Final Nonconfirmation).
C. Selective Verification Prohibition
OWS must verify all new hires through E-Verify. The Company may not selectively verify certain employees based on perceived national origin, physical appearance, accent, surname, or any other characteristic associated with a protected class. Selective verification — even if unintentional — constitutes a violation of both the E-Verify MOU and federal anti-discrimination laws and exposes the Company to significant legal liability, including civil penalties and potential debarment from the E-Verify program.
To ensure consistent and uniform application of E-Verify procedures, the following practices must be observed:
1. E-Verify cases must be created for every new hire at every OWS worksite, without exception.
2. The same case creation timeline (three business days from the first day of employment) must be applied uniformly to all new hires, regardless of the employee's apparent national origin, citizenship status, or the documents presented for Form I-9 purposes.
3. OWS's designated E-Verify administrators should maintain a log of all E-Verify cases created, organized by hire date, to facilitate audit verification that all new hires have been consistently processed through the system.
IX. Integration with Sentinel Background Verification Corp.
A. Overview of Integration
OWS utilizes Sentinel Background Verification Corp. ("Sentinel BV") as its third-party vendor for employment eligibility verification support, credential authentication, and background screening services. Sentinel BV's designated account lead for the OWS relationship is Tyler Ng, located at Sentinel BV's offices at 9100 Centre Pointe Drive, Suite 400, West Chester, OH 45069.
Sentinel BV's services encompass a range of pre-employment and onboarding verification functions, including criminal history screening, professional credential verification, employment history confirmation, and educational background authentication. In addition, Sentinel BV's platform integrates with OWS's HR information system ("HRIS") to facilitate seamless onboarding workflows that encompass both background screening and employment eligibility verification processes.
It is important to distinguish between Sentinel BV's role and OWS's obligations under E-Verify. While Sentinel BV provides valuable support in the onboarding process, E-Verify case creation and case management remain the exclusive responsibility of OWS's designated E-Verify program administrators — namely, Samantha Kowalski and Rajesh Anand. Sentinel BV does not have access to the E-Verify system, does not create E-Verify cases, and does not receive or review E-Verify case results.
B. Data Flow and Process Integration
The integrated onboarding workflow between OWS and Sentinel BV operates as follows: