Some Employees Fall through the Cracks as E-Verify Shutdown Continues
Many in HR are probably all too familiar with the rippling effects of the 2019 government shutdown, including the temporary mothballing of the E-Verify system during the past 4 weeks. Countless blogs (including our own) have described in some detail how the “E-Verify shutdown” is preventing participating employers from verifying their newly hired employees or resolving outstanding mismatches.
You probably already know that E-Verify employers need to set their Form I-9s aside for now, make plans to submit pending cases when (if?!) the government reopens for business, and keep track of pending TNCs. Employers using electronic I-9 systems have it even easier, as the system will typically place the individuals in a queue (a virtual waiting line, if you will).
But for some employers, the cascading effects of the E-Verify shutdown are just now coming to light, affecting hiring decisions, compliance obligations, and HR system rollouts (to name just a few). In today’s blog, we’ll explore three of these E-Verify quandaries (each based on a real-life scenario) and offer some best practice suggestions. Before beginning though, I’ll reiterate my usual disclaimer: I-9 and E-Verify rules are murky on a good day, so you’ll definitely want to discuss these options with your own immigration counsel before making any decisions.
Quandary #1: E-Verify Employer Goes Electronic
Martha is an HR compliance lead for Acme, Inc., which after many years has finally decided to utilize an electronic Form I-9 and E-Verify solution. While much rejoicing at Acme has ensued, Martha remains worried about her E-Verify program, especially since Acme has offices in Arizona, Georgia, and South Carolina (all of whom have strict E-Verify mandates).
Martha’s team wants to use the new electronic I-9 system right away, but with E-Verify offline, they are unable to establish the new account that is needed for the electronic I-9 system. To make matters more complicated, E-Verify strictly prohibits submitting I-9s with a start date that precedes the E-Verify account’s effective date (except for those registered as federal contractors or individuals who come forward with a new identity). Therefore, any I-9 created in the new electronic I-9 system before the shutdown ends will (in effect) never be submitted to E-Verify since the hire date will precede the E-Verify enrollment date.
Confused yet? If so, you’re in good company. Martha’s dilemma arises chiefly because of two limitations in the E-Verify system: (1) they do not currently allow employers to “transfer” an existing E-Verify account from one access method to another (e.g., from a web-based account to electronic I-9 or “web services” account) or even from one web services account to another; and (2) the system is very unforgiving when it comes to submitting employees that have a start date before an E-Verify account is live. Never mind the fact that the employer may have been using E-Verify for years.
(1) Delay the go-live date of Acme’s new electronic I-9 system. Under this option, Acme will just continue to complete its I-9s on paper, and manually enter the individuals in the E-Verify web interface once the system comes back online. While this option ensures that no employee slips through the cracks, Acme will be disadvantaged in that they’ll need to continue to complete I-9s on paper (where most employers find a 76% or higher error rate).
(2) Go-live now and submit the electronic I-9s through the E-Verify web account later. Under this option, Acme will start creating electronic I-9s right away (making everyone at Acme a much happier person). Once the E-Verify system is resurrected, Martha will manually enter information from the electronic I-9s in the E-Verify web interface. After that has been completed, Martha can terminate her old E-Verify web account, and use her provider’s new account to enable I-9s to be submitted to E-Verify automatically (no typing required!)
(3) Go-live now and inquire about submitting electronic I-9s through the provider’s E-Verify account once E-Verify is up and running. Similar to option 2, Acme will go-live now and begin creating electronic I-9s for newly hired employees. Then, to make things even easier for Acme, they will inquire with DHS about retroactively submitting these I-9s through their provider’s new E-Verify account (even though the hire date will precede the effective date of the new account). In doing so, Acme will make the argument that they have been holding themselves as an E-Verify employer, and are already under contract with DHS through their other account. While this option is appealing (from a workload perspective), the DHS has (in the past) refused to permit such allowances. But still…it’s tempting to ask!
Quandary #2: Proving E-Verify Participation
Initech Corporation has been using E-Verify for the past six months, with a stellar rate of compliance (no late cases, all TNCs resolved, etc.). Bill, the division vice president, proudly flaunts his company’s E-Verify record – especially to potential client companies who demand that all vendors participate in the program. Recently, one of his newest clients (a government contractor) asks Bill for a signed copy of Initech’s Memorandum of Understanding (MOU) before they start doing business with them.
Bill thinks to himself – no problem, I’ll just go online and retrieve it from our account. But alas, he is greeted with a message that is all too-familiar these days: “Due to the lapse in federal funding, this website will not be actively managed.”
(a) Explain to his client that there’s this thing called a “shutdown” and that he’ll have to take Bill on his word?
(b) Download a blank version of the MOU, sign where indicated, and provide to his client?
(c) Write a separate statement, affirming his participation in the E-Verify program, and provide to the client along with a blank copy of the MOU?
(d) Provide his client with a few E-Verify confirmation sheets from past employees to prove that they’ve been using it in the past?
As with many things in the world of I-9/E-Verify compliance, there is no clear guidance on how exactly to prove one’s participation in a program that is currently not funded. Personally, I like option (c) above (which is what a real-life client actually did) because it gives Bill the opportunity to explain his organization’s use of the E-Verify system. I like option (d) the least, because it’s important to remember that I-9/E-Verify information is highly confidential (and private), and should not be disclosed to third parties.
Quandary #3 Foreign Student Applying for STEM-Based Extension of Optional Practical Training
Barbara works in the HR department for Globex Corporation, an innovative technology company that hires the best and brightest engineers in the US and abroad. One of her employees is currently working pursuant to F-1 optional practical training (OPT), but the individual’s EAD is running out of time.
Fortunately, Barbara has determined that the individual can benefit from the STEM OPT rule which allows F-1 student university graduates who completed a degree in a STEM field (Science, Technology, Engineering, or Mathematics) to receive an additional 24-month period of work authorization beyond the initial 12 months of OPT that they received.
There are a variety of requirements for obtaining this extension, but one in particular, is problematic: the employer must be an active participant in E-Verify, as evidenced by a valid company identification number. And as it turns out, Globex has never participated in the program and as a result of the shutdown, has no means to enroll.
Is Globex out of luck? Not necessarily. Here are a couple of options that are worth exploring with your counsel (if you have a similar situation):
(1) First, Barbara might, under the advice of counsel, provide the employee with documentation showing that Globex intends to enroll in E-Verify but is unable to do so (perhaps a print-out of the E-Verify shutdown message from their website). Then, as the EAD expiration approaches, Barbara can reverify the employee’s I-9 by following the guidance for employees who have requested a 24-month extension. See the M-274 here for more details.
(2) Second, Barbara can also see if Globex has any related companies (or divisions) that are already participating in E-Verify, who could hire this individual instead. This option is tricky though because there must be a bonified employer-employee relationship with the individual (i.e., it can’t just be an employer on paper only)
As the above scenarios illustrate, managing your E-Verify program (and the resulting obligations) can be a lot more complicated than many employers realize – especially considering the temporary nature of the program itself (which must be reauthorized by Congress on a regular basis) and Washington’s apparent fondness for shutting down the government when disagreements arise.
Given the uncertainty (and complexity), HR should strongly consider developing an E-Verify standard operating procedures document, which clearly defines the employer’s obligations, responsibilities, and contingency plans (for situations just like these).
Oh, and by the way, did I mention that you should talk with your counsel before deciding any of these things? Okay good.
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