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UPDATE: E-Verify back online as 2019 federal government shutdown comes to a temporary end

Author’s Note: this blog (originally published on January 28, 2019) has been updated to reflect clarifying guidance from the USCIS on TNC deadlines for cases that were referred prior to the government shutdown. Special thanks to our Strategic Relationship Manager for clearing up the confusion!

The federal government is slowly creaking back into action after President Trump’s surprise announcement on Friday to temporarily end the 35-day impasse that affected hundreds of thousands of federal workers and their families throughout the US. Both the House and the Senate approved a short-term funding bill (lasting until February 15), and President Trump signed the measure on Friday night – enabling the federal government to once again open its doors (for at least 3 more weeks).

While the business impact of the nation’s longest government shutdown is not yet fully known or appreciated, some burdens and responsibilities are immediately coming into focus – especially if you participate in E-Verify, the somewhat voluntary program for verifying a new hire’s eligibility to work in the US.

As previously reported here and here, the E-Verify system has been completely offline since December 22, 2018 – meaning that employers have been unable to electronically verify new employees, resolve TNCs, access company E-Verify data, or enroll new entities or create new accounts as needed. This “lapse” in E-Verify services has NOT, however, excused employers from their typical and ordinary I-9 responsibilities. Instead, it has just created a rather large backlog of E-Verify tasks.

But fear not, because the United States Citizenship and Immigration Services (USCIS) has provided some guidance for managing the sudden (and hopefully long-term) reinstatement of the E-Verify program on their website (archived here). And since there are always additional nuances (and complications) associated with anything I-9/E-Verify related, we’ve created a short E-Verify resumption FAQ, along with some additional pointers based on our past experiences with shutdowns. Read below for our quick survivor’s kit to getting back online with your E-Verify obligations!

Q: How much time do I have to create E-Verify cases for employees who were hired during the shutdown?

A: Normally, employers must create an E-Verify case for new hires no later than the third business day after the employee starts work for pay. Since the shutdown prevented employers from submitting cases in a timely fashion, the USCIS is providing employers until February 11, 2019 to create cases for employees hired while E-Verify was not available. So in essence, you’ve got two weeks.

Q: Is there anything else that I need to do when submitting these late E-Verify cases?

A: If the E-Verify system prompts you to enter a reason for the late submission, the USCIS advises that you select “Other” from the drop-down list and write “E-Verify Not Available” as the specific reason. But note that the E-Verify system may skip the late reason prompt altogether in order to facilitate the submission process. Many organizations observed this time-saving shortcut during the last big shutdown in 2013, and we’re hopeful that the USCIS will implement it again.

Q: Do I also have until February 11, 2019 to create E-Verify cases for employees hired during the week of January 28th?

A: No, any employees hired after E-Verify resumed operations must be submitted in the usual 3-day time window. But note that if you are unable to submit these cases in a timely fashion due to delays in the E-Verify system, you may indicate “Technical Problems” from the drop-down list.

Q: Prior to the shutdown, my employee received a Tentative Nonconfirmation (TNC) in the E-Verify system.  How many days is USCIS allowing for my employee to resolve the TNC?

A: According to our E-Verify Strategic Relationship Manager, if your employee received a TNC on or after December 10, 2018 and notified you by Dec. 21, 2018 of his or her intention to take action to resolve the TNC, the referral deadline will be extended 10 federal business days from the date the government officially reopened (January 28, 2019). This means that your employee has until February 11, 2019 (Jan 28 + 10 business days) to contact either the Social Security Administration (SSA) or DHS to begin resolving the TNC. Employers should cross-out the date on the “Referral Date Confirmation” notice, write February 11, 2019, and give the revised notice to your employee.

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 TNC process.

Author’s note: we anticipate the USCIS will revise their E-Verify resumes page to match the clarified guidance above in the near future.

A: This one is a bit unclear as of this writing. According to the USCIS, if your employee received a TNC and notified you of his or her intention to contest it by February 11, 2019, you must revise the date by which your employee must contact the Social Security Administration (SSA) or DHS to begin resolving the TNC. Specifically, the USCIS notes that you should add 10 federal business day[s] to the date on your employee’s “Referral Date Confirmation” notice. Federal business days are Monday through Friday, and do not include federal holidays.

The phrase “intention to contest it by February 11, 2019” in this context is confusing because most of the outstanding TNCs would have been contested in December before the shutdown began. And once referred, the employee would automatically have 8 federal working days to visit the SSA or contact the DHS. So for example, an employee referred on December 18, 2018 would have a deadline of December 31st. Following the USCIS guidance, the employee would add 10 federal business days to this date, which would put their new date as January 15 (which is still in the past).

We’ve contacted the USCIS regarding these instructions, and will update this blog once we’ve received clarification. In the meantime, employees with pending (already referred) TNCs should try to resolve as soon as possible (i.e., within 8 to 10 federal working days) to avoid receiving an erroneous no-show decision. TNC cases that are referred after E-Verify resumed operations should be handled as usual – i.e., do not add days to the time your employee has to contact either SSA or DHS.

Q: How does the E-Verify resumption of service impact employers using electronic I-9 providers?

A: Employers using electronic I-9 systems (with E-Verify web services integrations) have a distinct advantage over organizations who complete I-9s on paper and manually enter E-Verify cases through the web interface. A well-designed electronic I-9 and E-Verify system will queue up I-9s that need to go to E-Verify during a shutdown (or other interruption) and then automatically submit once the E-Verify system comes back online. Case decisions will then be delivered back to the electronic I-9 and E-Verify system for further processing or closing as applicable. There are many other advantages as well, including paperless signing of TNCs, email alerts, and enhanced reporting (to name a few).

The USCIS has noted, however, that electronic I-9/E-Verify clients should expect longer-than-usual processing times as the agency works through all of the “accumulated cases” that will be submitted after this 35-day hiatus.

Q: Our organization is enrolled in E-Verify as a federal contractor (with the E-Verify clause) and one of our deadlines occurred during the government shutdown.  How should we proceed?

A: DHS guidance is that any calendar day during which E-Verify was unavailable due to the lapse in appropriations should not count towards the federal contractor deadlines found in the Employment Eligibility Verification Federal Acquisition Regulation. The USCIS recommends contacting your contracting officer for more information.

Q: Is USCIS customer support available to answer my E-Verify questions?

A: Yes, but you should definitely plan for longer than normal delays and response times (given the backlog of cases). For any questions or additional information about the unavailability of E-Verify, the USCIS recommends sending an email e-verify@dhs.gov. For questions about Form I-9, please visit I-9 Central or email I-9central@dhs.gov. Employers and employees may also contact E-Verify at 888-464-4218 Monday through Friday from 8 a.m. to 8 p.m. (Eastern).

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That’s all for now. Stay tuned for more updates on the E-Verify system (and post-shutdown processing in particular) by following this blog. In the meantime, if you have any questions on this article or would like more information on integrated E-Verify solutions, 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 President at the LawLogix division of Hyland Software, Inc., where he oversees all aspects of the division’s operations and provides strategic leadership and direction in the development and support of Form I-9, E-Verify, and immigration case management software solutions.

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