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Best Practices for Managing E-Verify during a Federal Government Shutdown

At the stroke of midnight last Friday (January 19th), the federal government officially shut down, ceasing all but the most essential functions and operations throughout the vast bureaucratic and administrative machine. Last-minute negotiations on a short-term spending bill fell apart, primarily as a result of the ongoing debate (and tension) surrounding the Deferred Action for Childhood Arrivals (DACA) program which President Trump is ending in early March of this year.

As it stands now, Senate Democrats are demanding a legislative fix to the DACA program while the White House and many Republicans are refusing to negotiate until the federal government resumes operations. As of this writing (Monday morning on the 22nd), Congress is scheduled to vote at noon on another short-term spending bill (that would last just 3 weeks), but it’s anyone’s guess as to whether the parties can come to an agreement which will enable the government to re-open its doors.

In the meantime, a wide variety of government services and programs will remain closed including one which directly affects hundreds of thousands of employers across the US: the federally funded E-Verify system. And sure enough, the USCIS has reminded employers of this conundrum, posting on Twitter that due to a lapse in DHS funds, the E-Verify, Self-Check, and Self-Lock services are temporarily unavailable.

 

Many employers may remember the last federal government shutdown (in 2013), when the E-Verify system remained offline for 16 days – leading to a huge backlog of new hire cases and pending resolutions which had to be addressed when the government finally reopened and the system resumed operations. For those of you who weren’t involved with I-9s and E-Verify back in 2013 (and the many others who would rather not dredge up those fond memories of the past), we’re providing some FAQs and best practices on how to manage your I-9 and E-Verify cases during this latest edition of the government shutdown.

Update: as of Monday, January 22, the USCIS has provided instructions regarding the E-Verify shutdown on its website (saved in PDF here). It is important to note that the USCIS may change these instructions (or provide further clarifications) once the government resumes. With that caveat in mind, let’s begin!

(1) When did the E-Verify shutdown begin?

Contrary to what you might think, E-Verify did not cease operations on Saturday morning when the federal government officially ran out of money. Instead, the system continued humming along throughout the day and then officially called it quits on Sunday morning around 7am (ET) (according to our system logs). While I’d like to believe this persistence is somehow the result of a stubborn and semi-autonomous rebellion on the part of E-Verify, I suspect that the timing of the shutdown (occurring at the beginning of the weekend) made it difficult for DHS to pull the plug. Regardless, E-Verify has now received the memo and is officially offline.

(2) How exactly is E-Verify affected by this latest government shutdown?

In a nutshell, the E-Verify system is totally unavailable. This means employers (and E-Verify employer agents) will be unable to do any of the following:

  • Enroll your organization in E-Verify
  • Create new E-Verify cases
  • View or take action on any case
  • Add, delete or edit any User account
  • Reset passwords
  • Edit your employer information
  • Terminate your account
  • Run reports

In addition, E-Verify Customer Support and related services are also closed as well. This means:

  • Employees will be unable to resolve Tentative Nonconfirmations (TNCs)
  • Telephone and e-mail support will be unavailable. You may send e-mails, however, the USCIS cannot respond until E-Verify reopens
  • E-Verify webinars and training sessions will be cancelled
  • myE-Verify (including Self Check and Self Lock) will not be available for individuals

(3) How do I manage my I-9 and E-Verify obligations for new hires during the shutdown?

The first and most important thing to note is that you must still complete the Form I-9 for all new hires, regardless of whether or not the E-Verify system is online, offline, or just taking a temporary break. As we often discuss, E-Verify is never a replacement for the Form I-9 process, and so the federal government shutdown should have absolutely no impact on your regular and routine I-9 obligations.

Once the Form I-9 is completed, however, employers will be unable to create a case in the E-Verify system within three business days after the employee starts work for pay (as is required by the E-Verify system). According to the USCIS, this so-called ‘three-day rule’ for E-Verify cases will be suspended for cases affected by the shutdown, but employers will need to eventually submit these I-9s to E-Verify once the system comes back online.

In 2013, the USCIS provided employers with a limited amount of time to enter/create all of these cases when the system came back up, so employers will want to make sure to keep track of all new hires during the shutdown and maintain easy access to the I-9 files (as well as copies of required supporting documents for photo matching). Employers using electronic I-9 systems (such as Guardian by LawLogix) can benefit from automatic queuing and submitting of the E-Verify cases – saving a significant amount of time and worry.

(4) How do I manage pending TNCs that I received prior to the government shutdown?

If the federal government shutdown prevented your employee from contesting a Tentative Nonconfirmation (TNC), he or she will be allowed additional time to contact the Social Security Administration (SSA) or Department of Homeland Security (DHS) once the system resumes. During the 2013 shutdown, the USCIS instructed employers and individuals to add 12 federal business days to the date a case was referred, but we’ll need to see what the USCIS advises this time around.

Employers should be careful not to take any adverse action towards employees with TNCs during the shutdown, including terminating, suspending, or withholding training, hours, or pay.

(5) How will the government shutdown affect federal contractors or subcontractors with looming E-Verify deadlines?

Federal contractors and subcontractors will be unable to enroll or use E-Verify as required by the FAR (federal acquisition regulation) federal contractor rule. If your organization misses a deadline because E-Verify is unavailable or if it has an upcoming deadline for complying with the federal contractor rule, you are instructed to complete your cases (following the same guidelines mentioned above) and to notify your contracting officer about extending the federal contractor deadlines.

That’s it for now. LawLogix will continue monitoring the federal government shutdown debate (on an hour by hour basis) and provide further updates once they are received. In the meantime, if you have any questions or comments on this blog (including E-Verify management or electronic I-9 systems), please feel free to contact us here.


About John Fay

John Fay is an immigration attorney and technologist with a deep applied knowledge of I-9 compliance and E-Verify rules and procedures. During his career, John has advised human resource managers and executives on a wide variety of corporate immigration compliance issues, including the implementation of electronic I-9 systems. In his current role, John serves as Vice President and General Counsel at the LawLogix division of Hyland Software, Inc., where he is responsible for overseeing product design and functionality while ensuring compliance with ever-changing government rules.