Employers enrolled in E-Verify, the federal government’s electronic employment verification system, are required to use the system to run checks on new workers within three days of hiring them. In the absence of an operational E-Verify system during the government shutdown, it is impossible for employers to comply with the law. What are employers supposed to do now that E-Verify has gone dark?
U.S. Citizenship and Immigration Services (USCIS) has stated that employers will not be able to access their E-Verify accounts during the shutdown. However, “to minimize the burden on both employers and employees,” the agency has announced the following key policies:
- The “three-day rule” for E-Verify cases is suspended for cases affected by the shutdown. USCIS will provide additional guidance once it reopens. This does not affect the Form I-9 requirement—employers must still complete the Form I-9 no later than the third business day after an employee starts work for pay.
- The time period during which employees may resolve tentative nonconfirmations (TNCs) will be extended. “Days the federal government is closed will not count towards the eight federal government workdays the employee has to contact the Social Security Administration (SSA) or the Department of Homeland Security (DHS),” the agency said.
How Does the E-Verify Shutdown Affect Employers?
Throughout the duration of the government shutdown, employers will be unable to:
- Enroll in E-Verify.
- Verify employment eligibility.
- View or take action on any case.
- Add, delete or edit company information.
- Reset passwords.
- Terminate an account.
- Run reports.
In addition, E-Verify Customer Support and related services are closed, resulting in:
- Telephone and e-mail support being unavailable.
- Employees being unable to resolve TNCs.
- E-Verify webinars and training sessions being cancelled.
- E-Verify Self Check being unavailable.
So how can employers enrolled in E-Verify comply with the program’s requirements?
Normally, the employer enters information from the I-9 into E-Verify within three days of hire, but that won’t be possible while the system is unavailable, said Josie Gonzalez, partner at Stone Grzegorek & Gonzalez, during an Oct. 3, 2013, LawLogix webinar titled “Staying I-9 & E-Verify Compliant During the Government Shutdown.”
“One hopes that the government will offer guidance once the shutdown is over and one can only speculate what that guidance will be,” she said. Either the three-day clock will begin running the day the shutdown ends, or the government will provide more than three days so employers can catch up with entering the potentially large volume of cases. “Imagine the employer who hired 100 people during the shutdown. I think the government should offer 30 days as an extra grace period,” Gonzalez said.
“One of the biggest issues for employers and employees is not being able to resolve TNCs,” said Wendy Madden, counsel at Balch and Bingham, based in Birmingham, Ala.
“Especially if you initiated a case before the shutdown, you’ll be stuck,” she said during the webinar.
Federal contractors with a federal acquisition regulation E-Verify clause should contact their government contracting officers to extend deadlines, advised Gonzalez. “I imagine there will be leniency on this,” she said.
Do Not Take Adverse Actions
Employers may not take any adverse action against an employee while the employee’s case is in an extended interim case status due to the federal government shutdown, USCIS said.
“Don’t fire anyone because you can’t resolve a TNC,” explained Madden. “Continue to treat them the same as you would during the eight-day period, providing training, benefits etc.,” she said. Also, don’t refuse to hire anyone because they can’t be verified in the system.
“No worker should be prejudiced because of the shutdown,” Gonzalez said.
“There will be some enforcement if you take these actions against employees, once the government resumes operations,” she added.
Prepare for the Resumption of Service
The backlog created as a result of the shutdown might have a significant impact on employers who process many E-Verify cases and specifically on the HR staff members and other team members in charge of the E-Verify process, said Ann Cun, immigration attorney and counsel for LawLogix. “If you haven’t already, plan, plan and plan some more, because it’s unclear how long a shutdown may last,” she said.
Here are some tips to prepare for the resumption of E-Verify service:
- Prepare for the increased volume of cases. Keeping good records is critical, said Madden. Document all the cases you’ve hired that you haven’t run through E-Verify. “If you don’t keep track of who has or hasn’t been run through E-Verify, you will have a problem,” she said.
- Designate specific personnel to complete the follow-up process in E-Verify once the system resumes. Develop a way to follow up with the employees who have completed the Form I-9 process but still need to be run through E-Verify. “This makes sense, especially if you have a large team processing I-9s,” said Madden. “This will offer more control and make it less likely that people fall through the cracks.”
- Align with legal counsel or your compliance team to ensure a uniform message is indicated in the E-Verify system as to why the cases were delayed.
When E-Verify service resumes, there is an option to alert USCIS of issues encountered during the shutdown.
Cun cited the following option from the recently updated E-Verify User Manual (pages 18-19):
If an E-Verify case is not created by the third business day after the employee begins work for pay, the user must indicate the reason for the delay. Select from one of the following reasons:
- Awaiting Social Security number
- Technical Problems
- Audit Revealed that New Hire Was Not Run
Select “Other,” then enter “government shutdown” in the field provided, she advised.
Don’t Be Afraid to Hire
It’s been reported that some employers have been skittish to hire because of the E-Verify shutdown. The experts say don’t be afraid. “Your I-9, completed in good faith, is your affirmative defense if the government says that you knowingly hired unauthorized workers,” said Gonzalez. “If your business requires it, and you have job applicants, go ahead and hire the people you need.”
Roy Maurer is an online editor/manager for SHRM.
Follow him at @SHRMRoy
Immigration Processing Impacted by Government Shutdown, SHRM Online Global HR, October 2013
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