E-Verify shuttered as 2019 hiring begins
The partial federal government shutdown (now in its 12th day) has gotten a lot of media attention for good reason. Approximately 800,000 federal workers have been affected, with roughly 380,000 currently furloughed from their roles and another 420,000 who are working without immediate pay.
And yet, the shutdown actually affects a significant number of private employers as well in a very specific and highly ironic way: E-Verify, the government’s system for verifying a new hire’s eligibility to work and reducing unauthorized employment, has also been shut down. So while President Trump holds out for funding of a border security wall over concerns relating to illegal immigration, many employers now lack the ability to use E-Verify to ensure they hire a legal workforce.
This is one of many shutdown paradoxes for sure, which is especially noticeable today as employers begin to onboard their newest batch of hires in 2019. As it stands now, congressional leaders are heading to the White House this afternoon for a meeting with the president to discuss potential options, 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.
Many employers may remember the last big 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 government shutdown.
It is important to note that the USCIS may change their current instructions for managing the E-Verify shutdown (archived here) 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 immediately cease operations when the federal government officially ran out of money. The system actually continued accepting new cases throughout the morning and early afternoon on Saturday, December 22nd before coming to an abrupt halt.
(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 any company in E-Verify
- Create an E-Verify case
- View or take action on any case
- Add, delete or edit any User ID
- Reset passwords
- Edit your employer information
- Terminate an account
- Run reports
In addition, E-Verify Customer Support and related services will also be closed as well. This means:
- Employees will be unable to resolve Tentative Nonconfirmations (TNCs)
- Telephone and e-mail support will be unavailable.
- E-Verify webinars and training sessions will be cancelled
- myE-Verify 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, you 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). 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, 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. According to the latest guidance, the number of days E-Verify is not available will not count toward the days the employee has to begin the process of resolving their TNCs.
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 will be instructed to complete your cases (following the same guidelines mentioned above) and to notify your contracting officer of these instructions.
That’s all 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.