E-Verify Expired During Government Shutdown

“Three-day rule” suspended; most immigration-related services still running

Roy Maurer By Roy Maurer January 2, 2019
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​E-Verify—the federal electronic employment eligibility verification service—has expired due to a lapse in funding and will not be available during the partial shutdown of the U.S. government that began Dec. 22, 2018.

The Department of Homeland Security (DHS), which oversees the program, announced that the website www.e-verify.gov will not be actively managed and will not be updated until after funding is restored. The agency reported that "information on this website may not be up to date. Transactions submitted via this website might not be processed and we will not be able to respond to inquiries until after appropriations are enacted."

"No funding, no E-Verify," said Montserrat Miller, a partner in the Washington, D.C., office of Arnall Golden Gregory. "Which means that E-Verify will … remain shut down until DHS is funded by Congress. This requires that Congress pass a continuing resolution to fund the government and the president signs it."

Today is the last day of the Republican-controlled 2017-2018 Congress. Democrats take control of the House of Representatives Jan. 3 and reportedly plan to introduce legislation funding DHS through Feb. 8 and the other unfunded agencies through the 2019 fiscal year. Passage in the Senate is not likely however, where Republicans hold a majority and have signaled that they will not vote on any funding bills that President Donald Trump does not support.

During the shutdown, employers will not be able to enroll in the program; access their E-Verify accounts; create a case; view or take action on any case; add, delete or edit accounts; reset passwords, edit company information, terminate accounts, or run reports.

Workers will not be able to resolve E-Verify Tentative Nonconfirmations (TNCs) during the shutdown. In addition, myE-Verify will be unavailable and employees will not be able to access their myE-Verify accounts.

"Typically, DHS issues instructions on holding cases until they are back online and does not penalize employers for not creating a case in E-Verify within three business days," Miller said.

To minimize the burden on both employers and employees, DHS announced that:

  • The three-day rule for creating E-Verify cases is suspended for cases affected by the unavailability of the service.
  • The time period during which employees may resolve TNCs will be extended. 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.
  • Additional guidance regarding the three-day rule and time period to resolve TNC deadlines will be provided once operations resume.

"Employers are warned not to take any adverse action against employees while an E-Verify case remains in an interim or limbo status," said Amy Peck, an immigration attorney with Jackson Lewis in Omaha, Neb.

Federal contractors with the Federal Acquisition Regulation E-Verify clause should contact their contracting officer to inquire about extending federal contractor deadlines.

The shutdown does not affect an employer's responsibility to verify employment eligibility. Employers must still complete the Form I-9 no later than the third business day after an employee starts work for pay and comply with all other Form I-9 requirements, DHS said.

Most Immigration Services Up and Running

The shutdown's effect on other immigration processes is limited, Peck explained.

Border operations continue as before, Customs and Border Protection and Immigration and Customs Enforcement are still operating, and U.S. Citizenship and Immigration Services (USCIS) will continue, primarily from user fees.
"Fee-funded activities are not affected, which means that USCIS offices will remain open, interviews and appointments will continue as scheduled, and most petitions and applications will continue to be accepted and processed," Peck said. "Because the Department of Labor's funding has already been appropriated, LCA and PERM cases will not be affected. It seems that passport services will remain available and U.S. Embassies and Consulates abroad will continue to provide services to U.S. citizens, but other services may be limited."

Most immigration courts and the USCIS Ombudsman's Office are closed during the shutdown.

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