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E-Verify Back Online After Government Shutdown (FAQs for Employers)

 

Yesterday, the US Senate voted 81-18 to end the short-lived (3-day) government shutdown and extend federal funding through February 8, 2018. The House gave final approval to the measure later in the day, and President Trump signed the bill on Monday night – enabling the federal government to once again open its doors for business (for at least 3 more weeks).

Meanwhile, the various federal agencies and programs are slowing returning to normal operations – furloughed employees are being recalled to work, national parks are planning to fully open their gates, and government systems are once again coming to life. And for many employers across the US, the most important re-opening may be the E-Verify system, which has fully resumed its operations. Specifically, all E-Verify features and services, including the ability to resolve Tentative Nonconfirmations (TNCs) are once again available for use.

However, as with all things I-9 and E-Verify related, there are nuances and potential complications for employers with this 3-day shutdown – particularly in connection with the often unforgiving deadlines associated with the E-Verify program. Below are some frequently asked (and answered) questions regarding how the shutdown may impact your I-9 and E-Verify obligations (courtesy of the USCIS notice here).

(1) How do I manage late E-Verify submissions as a result of the government shutdown?

USCIS notes that you must create an E-Verify case by Jan. 29, 2018, for each employee hired while E-Verify was not available (using the hire date from the employee’s completed Form I-9). If you are unable to create an E-Verify case by the third business day after the employee begins work for pay, you should select “Other” from the drop-down list and write “E-Verify not Available” as the specific reason.

(2) Are there any special instructions for TNCs received during the shutdown?

If your employee received a TNC that is dated January 22, 2018, you must revise the date by which your employee must contact the Social Security Administration (SSA) or DHS to begin resolving the TNC (which is normally 8 federal government working days). To do this, add 1 federal business day to the date on your employee’s “Referral Date Confirmation” notice (crossing out the old date and inserting the new one) and provide the revised notice to your employee. Referred employees have until this new date to contact the SSA or DHS to resolve their cases, as applicable.

(3) What should I do if I received a TNC before the government shutdown and was unable to process it?

If the unavailability of E-Verify prevented you from referring a TNC case, you should continue the TNC process once your employee has decided whether or not they wish to contest. For TNC cases that were referred after E-Verify resumed operations, do not add days to the time your employee has to contact either SSA or DHS. If your employee decided to contest the TNC when E-Verify was unavailable, you should now refer the employee’s case and follow the usual TNC process.

(4) Are there any special rules for federal contractors with the E-Verify FAR clause who were impacted by the government shutdown?

Since federal contractors could not enroll or use E-Verify during the government shutdown, the USCIS is providing them with a 1-day grace period in meeting their federal contractor rule (FAR) requirements. Specifically, any calendar day during which E-Verify was unavailable because of the lapse in appropriations should not count towards any of the federal contractor deadlines. The USCIS recommends that employers contact their contracting officer for more information on federal contractor responsibilities.

Next Steps

In addition to the best practices mentioned above, employers should make sure to fully resolve any of their outstanding E-Verify cases (those initiated today and outstanding submissions from before) according to the program rules. In particular, be on the lookout for pending SSA or DHS TNCs, incomplete cases, and photo matching requests. Given the increase in monitoring and compliance (and the heightened attention to worksite enforcement), it’s always a good idea to keep a close look out on the state of your E-Verify activity.

And last (but not least), there’s still a possibility that another government shutdown may be looming in the very near future (when government funding lapses again on February 8th). It’s too early to tell whether E-Verify may be in store for another hiatus, but regardless, employers should continue to proactively manage both their I-9 and E-Verify obligations.


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.