Questions and Answers on E-Verify Shutdown and I-9 Compliance

Last Thursday, October 3, LawLogix conducted a webinar “Staying I-9 & E-Verify Compliant During a Government Shutdown.” Our guest speakers included:

  • Josie Gonzalez, Partner at Stone Grzegorek & Gonzalez LLP in Los Angeles, CA
  • Wendy Madden, Counsel at Balch & Bingham LLP in Birmingham, AL

The webinar came at a time when employers were still unclear how the federal shutdown would impact employment eligibility verification compliance.  You can read highlights of the webinar on Society for Human Resource
Management’s (SHRM) article E-Verify-Shutdownhere.  Today’s article summarizes some of the most popular questions and the answers provided by our expert panelists:

E-VERIFY VS. FORM I-9

Q: Since the E-Verify System has been shut down (effective October 1st), should we complete a Form I-9 instead?

A: The Form I-9 is required to be completed at all times, regardless of whether your organization is enrolled in and using E-Verify or not.

Q: If I hire an employee now, complete the Form I-9, will I still need to initiate an E-Verify case for this new hire once E-Verify is operational again?

A: Yes, but only if your organization is enrolled in E-Verify.  If your organization is NOT enrolled in E-Verify, than completing the Form I-9 is your only requirement under federal law.  (Check with your state or local laws to see if you have other requirements.)

E-VERIFY SHUTDOWN

Q: On the E-Verify’s website regarding the shutdown, it warns employers not to take any adverse action against employeeswhile the employee’s case is in an extended interim case status due to a federal government shutdown.” What constitutes an ‘interim case status’?

A: USCIS instructs employers to refer to the M-775, E-Verify User Manual for Employers (see page 85) in which ‘interim case status’ is reflected in four (4) different ways:

  • SSA or DHS Tentative Nonconfirmation;
  • Review and Update Employee Data;
  • DHS Verification in Process; and,
  • SSA or DHS Case in Continuance.

Q: Did someone say there was an updated E-Verify User Manual for Employers released recently?

A: Yes.  It was updated in late September 2013.  (See the previous question for a link.)

Q: For states mandating the use of E-Verify, will employers be exempt during the federal shutdown?

A: Please check your respective state to find out what guidance, if any, it may have provided on its official website.

Q: My E-Verify password is due to expire during the shutdown period.  How will I gain access to E-Verify after the shutdown is over?

A: It’s likely you will have to contact E-Verify customer service for a password reset once the E-Verify system is operational since the system is currently not accessible now for a reset.

Q: Does the eight (8) federal working day period to initiate a TNC resolution get extended due to the shutdown?

A: Yes.

EMPLOYERS SUBJECT TO FEDERAL ACQUISITION REGULATIONS (FAR)

Q: The E-Verify shutdown website instructs “For federal contractors complying with the federal contractor rule, please contact your contracting officer to inquire about extending deadlines.”  Who exactly would the contracting officer be, a USCIS representative or one from our company?

A: Speak with your procurement department.  The officer is likely your government liaison within your organization.

Q: If we are a federal contractor with FAR contracts, should we delay a new employee’s date of hire until we can run E-Verify?

A: Delaying the hiring of an employee (whether a FAR contractor or not) is a decision that can only be made by the employer.  While it is one option, there are other options for documenting the impact of the shutdown on I-9 compliance, so that employers can still proceed with hiring.  Please consult with your legal team on which options makes the most sense for your organization.

Q: If we are no longer required to participate in E-Verify due to a government contracting status change, can we stop pending cases in E-Verify even though we are unable to cancel our MOU at this time due to the shutdown?

A: At this time, since the shutdown is in effect, employers cannot access the E-Verify system to cancel pending E-Verify cases.

SOCIAL SECURITY ADMINISTRATION (SSA)

Q: My foreign national employee, newly entering the country, must apply for a social security card but the SSA has indicated it is not issuing new or replacement SS cards during the shutdown.  What should I do?

A: The Form I-9 does not require a social security number unless your organization is enrolled in E-Verify.  The social security number is needed to initiate a case in E-Verify.  You can still complete a Form I-9 for a foreign national employee if the foreign national decides to present other documents to demonstrate his/her work authorization.  (Please have the employee refer to the see List of Acceptable Documents on page 9, Form I-9.)

Q: My newly hired employee has opted to present a List B and List C document.  Her List C document is a social security card, except she lost it.  She knows the number, but she simply does not have the actual card to present for physical inspection.  Since SSA is not issuing replacement SS cards during the shutdown, what are her options?

A: Employees have the option of choosing any item from List C.  While an employer cannot instruct which document an employee can present, it can remind employees that if one List C document is not available, another List C document can be selected from that list.  (Also note that the employee may likely have to provide a birth certificate to apply for a replacement SS card according to SSA’s website here.)

Q: If that same employee decides to obtain her certified birth document (#4 of List C), will state vital records offices be open due to the shutdown?

A: State/local vital records offices should not be affected by a federal shutdown.  The employee should contact the appropriate office for details and costs on how to obtain that document.

Q: We are a company that requires copies of social security cards for all our new hires. If we ask for a copy and the new hire does not have a copy, then we ask them to go get one. Can we accept an I-9 without actually seeing the documents?

A: The rules in the M-274, Handbook for Employers (this is the companion handbook to the Form I-9) make clear that an employer cannot require a newly hired/re-hired employee to present a specific document (like a social security card) during the Form I-9 Section 2 verification process.  (See item #2 under “Document Abuse”, page 31.)

Q: Will USCIS provide employers a grace period under the “receipt rule” since certain agencies, like the SSA, have shut down its services?

A: We speculate this will be very likely but will have to wait and see what guidance USCIS provides after the shutdown.

PAYROLL ISSUES?

Q: Can we pay newly hired employees who have completed an I-9 and began work even if we were unable to initiate an E-Verify case on them because of the shutdown?

A: Yes.  Just be sure to follow up after the shutdown is over to initiate a case in E-Verify.

AFTER THE SHUTDOWN ENDS.…

Q: When will the shutdown end?

A: One can only guess. In fact, you can guess how long here.

Q: How will we be notified when E-Verify is operational again?

A: Hopefully, once the shutdown is over, the immediate next business day USCIS will issue guidance.  But this is just a wild guess.  Be sure to subscribe to our I-9 and E-Verify blog so you can be alerted via email and check the news often.

Q: After the shutdown, will USCIS provide a grace period for employers to initiate cases in E-Verify for employees hired/re-hired during the shutdown?

A: Assuming USCIS has more sense than Congress, than it would be in its best interest to provide employers with a generous grace period, like 30 days, as suggested by Attorney Panelist Josie Gonzalez in our webinar.  We won’t know until after the shutdown is over.

Q: My HR Team Member, who completed the Form I-9 for our new hire, is going on leave soon.  After the shutdown is over, a new HR Rep will have to resume E-Verify functions.  Is this okay?

A: It should be.  The employee who verified Section 2 documents on the Form I-9 need not be the same individual who is processing the E-Verify case.

U.S. CITIZENSHIP & IMMIGRATION SERVICES

Q: If we have an employee with an employment authorization document (EAD) expiration date coming up next week, will there be a grace period for the employee if they are unable to renew due to the government shutdown?

A: Actually, U.S. Citizenship & Immigration Services (USCIS) oversees the processing and review of EAD applications.  Your employee should be able to renew his/her EAD application with USCIS during the shutdown.  This function is still operational because it is funded by applicant fees paid to USCIS (and not funded by Congressional appropriations).  We’ll be covering the federal shutdown on immigration agencies more broadly in an upcoming webinar.  Please subscribe to our newsletter to receive more information about registering.

Disclaimer: The information contained in this blog post is provided for educational purposes only, and should not be construed as legal advice or as a substitute for legal counsel. If you have questions regarding properly completing I-9 Forms, planning I-9 audits as it relates to I-9 compliance, or questions about E-Verify in general or in your state, as they relate to the federal government shutdown, please contact an experienced immigration or employment attorney to obtain advice which is tailored to your unique situation.