[Editor's Note: today's blog is co-authored by Amy Peck of Jackson Lewis LLP.]
Amid the threat of a looming government shutdown, many employers have been asking whether the E-Verify system will remain operational, and if not, what impact this will have on their hiring practices. Although official guidance has not yet been publicly released by USCIS, our understanding is that the E-Verify system will in fact not be available to employers during a government shutdown (if indeed, one occurs).
On a practical note, this means that employers participating in E-Verify will not be able to submit their new hires to the system within the 3-day deadline. Beyond that simple truth, however, lies several lingering questions regarding the timing of future E-Verify submissions, the “reason” selected for late submissions, and the impact (if any) on employer resources. While some of these questions may be answered in the coming days (or be completely unnecessary if the shutdown is averted), here is some preliminary analysis which may be useful. Please note the guidance below is based on our opinion only. As always, it’s best to consult with legal counsel regarding your own unique E-Verify situation and questions.
When will the E-Verify shutdown occur?
Congress has until midnight tonight to reconcile their differences on spending for the rest of the year. If the parties fail to reach an agreement, all non-essential government operations such as E-Verify will grind to a halt. Presumably, this will mean that the E-Verify system will no longer be accessible (either through the web or through electronic I-9 software) at 12:00pm ET tonight.
What will be the immediate impact for employers?
Under normal circumstances, participating employers must initiate E-Verify queries for new employees within 3 employer business days after each employee has been hired (but only after the Form I-9 has been completed). In the event of a government shutdown, employers will be unable to meet this deadline and will thus need to submit information from these I-9s to E-Verify when the system resumes.
Our organization voluntarily uses E-Verify OR is in a state which requires E-Verify. How does this impact our hiring process during the shutdown?
First, an E-Verify shutdown would not (and should not) prevent organizations from hiring new employees. Although employers will be unable to meet their E-Verify deadline, they should continue to complete the Form I-9 within the usual time frames in order to document that they have met their obligation to verify the identity and work authorization of new hires. Regarding the E-Verify deadline, the good news is that the E-Verify Memorandum of Understanding (MOU) has a provision which excuses employers from timely E-Verify submissions if the system is unavailable. Specifically, Article II C(7) states, “If the automated system to be queried is temporarily unavailable, the 3-day time period is extended until it is again operational in order to accommodate the Employer's attempting, in good faith, to make inquiries during the period of unavailability.” So in other words, once the system comes back online, employers can submit information from their completed I-9s to the E-Verify system as usual.
When the system resumes, how should I notify USCIS that I am submitting a late case due to the government shutdown?
Generally, when an E-Verify query is submitted late, the system automatically requires employers to select a “reason” for late submission or provide an explanation. The possible choices include:
Although USCIS has not specifically indicated which reason would be appropriate, we believe that the “Technical Problems” or “Other” reason (with a simple explanation of “government shutdown”) will most likely suffice. Again, employers should wait for USCIS guidance or check with counsel when/if the time arises.
How will an E-Verify shutdown affect employers using electronic I-9 systems?
Most electronic I-9 systems on the market today offer some method of real-time integration with the E-Verify system, enabling employers to submit data directly from their electronic I-9 records to E-Verify and avoid the retyping of information and the possibility of costly mistakes. In the event of a government shutdown, a well-designed electronic I-9 system such as Guardian by LawLogix should automatically maintain pending E-Verify submissions in a holding queue for future transmission. When E-Verify comes back online, the electronic I-9 system should then submit these queries to E-Verify while also maintaining the ability to process new hires going forward.
When and where can we expect official guidance from USCIS regarding an E-Verify shutdown?
At this time, the agency is still finalizing its operational plans in the event of a government shutdown (with a fervent hope that it doesn’t occur). In the event the shutdown happens this evening, we’ve been informed that the E-Verify public website and the logon page to the E-Verify system will post appropriate guidance.
What should employers do now?
As with most things related to I-9 and E-Verify, messaging and internal communication is key. Hiring managers and I-9 processors should be made aware that while E-Verify is offline, they should continue to complete the Form I-9 as usual. Employers without electronic I-9 systems should maintain their own “holding queue” so they can efficiently process their E-Verify submissions when the stalemate ends. Lastly, employers should disseminate their own instructions on how to document late submissions, based on forthcoming official USCIS guidance and conversations with legal counsel. Stay tuned for more updates!