Federal Funding Hiatus Shuts Down E-Verify

[Updated October 1, 2013] As of the writing of this article, Congress remains at an impasse on the federal budget.  The potential actualization of a partial government shutdown is still very possible now real.  Many have wondered how the E-Verify Program would be affected, if at all, from a potential “federal funding hiatus.”

Late last Friday, the Whitehouse published the following Contingency Plan from the Department of Homeland Security.  To clarify, certain government functions will not be subject to a government shutdown (i.e.: are exempt), if the functions are:

  1. Funded from sources other than annual appropriated funds from Congress;
  2. Authorized by Congress to continue even without funding;
  3. Necessary for the safety of human life or protection of property; or,
  4. Necessary for the orderly cessation of other government functions.

The E-Verify Program is administered by the U.S. Citizenship & Immigration Service (USCIS).  Although many services provided by USCIS are funded from government filing fees, the E-Verify Program is not.  Instead, it receives annual appropriations from Congress.  (In FY2013, it received $212 million.)

If the E-Verify Program received funding from other sources (which is does not, according to the Contingency Plan), it could continue to be operational in spite of a government shutdown.  As a result, employers will likely be are now faced with an inability to access E-Verify online, beginning as early as Tuesday, October 1st, the first day of the federal fiscal calendar year:

E-Verify – Citizens and U.S. businesses will not be able to access E-Verify, the Internet-based system that allows employers to voluntarily determine the eligibility of prospective employees to work in the United States.   (See the Contingency Plan, at page 2.)

HOW DOES AN E-VERIFY SHUTDOWN AFFECT EMPLOYERS?

For employers who are enrolled in E-Verify, how can they comply with the requirements under the Memorandum of Understanding (or other federal, state or local law)?  So far, there has been no official guidance from USCIS regarding how employers should proceed in the event of an E-Verify shutdown.  As of Tuesday, October 1st, USCIS posted the following details on the shutdown of E-Verify here.

However, all is not lost.  Here’s what we do know:

  • A shut down of E-Verify would make complying with MOU requirements impossible for the duration of the shutdown.
  • The recently updated E-Verify User Manual (Revised September 2013, at pages 18-19) provides the following option:

If an E-Verify case is not created by the third business day after the employee begins work for pay, the user must indicate the reason for the delay.  Select from one of the following reasons:

  • Awaiting Social Security number
  • Technical Problems
  • Audit Revealed that New Hire Was Not Run
  • Other

If you select “Other,” enter a specific reason in the field provided.

  • Once the shutdown is over (if it occurs), employers may resume using E-Verify again.
  • Attempts to resolve a TNC during the shutdown of E-Verify will not be possible since Customer Support Services will be closed.
  • The number of days the shutdown is in effect will not be counted towards the days allocated to initiate a TNC resolution.

TIPS TO PREPARE FOR A SHUTDOWN

The unspoken elephant in the room is that for employers who process many E-Verify cases for newly hired and re-hired employees, the backlog created as a result of a government shutdown might have a significant impact on your HR staff members and other team members in charge of the E-Verify process.  If you haven’t already, plan, plan, and plan some more, because it’s unclear how long a shutdown, if it occurs, may last.  Here’s an easy three-step process that might help:

  1. Develop a way to follow up with the employees who have completed the Form I-9 process but still need to be initiated in E-Verify.  (The Form I-9 process continues as usual, regardless of whether a government shutdown occurs or not.)
  2. Designate the appropriate staff members to complete the follow up process in E-Verify.
  3. Align with legal counsel or your compliance team to ensure a uniform message is indicated in the E-Verify system as to why the cases were “delayed.”

 

For employers who have opted to utilize an electronic system like the Guardian I-9 and E-Verify System, it’s easy to manage the E-Verify process, in spite of a shutdown.  Rest assured that advanced planning can help smooth over any government disruptions.