Day 13 of the partial government shutdown brings further headaches for the country. Not only are the country’s national parks shut down, but businesses also are feeling the effects as “E-Verify and E-Verify Services are currently unavailable due to a lapse in government appropriations.” For employers who opt to utilize the service and federal contractors and subcontractors who are required to do so, this may create some real headaches.
For example, for the time being and the indefinite future, employers will not be able to access their E-Verify accounts, enroll in E-Verify, create cases, take action on cases, revise user accounts, edit company information, terminate accounts or run reports.
Employees will be unable to resolve an E-Verify Tentative Nonconfirmation (“TNC”).
Telephone and Email support will not be available and DHS will not respond to Form I-9, E-Verify and myE-Verify inquiries.
DHS has posted guidance for employers during the shutdown. Among the recommendations:
DHS has implemented the following policies for employer’s who utilize E-Verify during the shutdown.
The “three-day rule” that requires employers to create an E-Verify case for new employees within three days of their first day of employment is indefinitely suspended.
If an employer received a TNC for an employee and had not resolved it before the shutdown, DHS is extending the time period during which employees may resolve TNC’s.
The number of days E-Verify is down will not count towards the days the employee has to begin the process of resolving their TNCs, which is found on the Referral Date Confirmation an employer must provide to an employee who wishes to resolve a TNC.
Once operations resume, DHS will provide further guidance regarding the “three-day rule” and the time period to resolve TNCs.
Telephone and Email Support Unavailable
Form I-9, E-Verify and myE-Verify support representatives are not available to respond to inquiries; however, the Form I-9 On-Demand Webinar is accessible.
Some E-Verify resources are still available, which DHS states may provide some assistance:
Employers should not take any action against an employee because of the inability to complete the E-Verify process due to the unavailability of E-Verify. If an employer is a federal contractor required to utilize E-Verify, they should contact their contracting officer to request an extension for the federal contractor deadlines for employment verifications.
Employers should continue to utilize the USCIS Form I-9 to verify employment eligibility. The requirement to complete the Form I-9 no later than the third business day after an employee starts work is still in place during the shutdown, as is the requirement for an employee to present original documents providing their identity is likewise still in effect during the shutdown. Employers with questions on utilization of the Form I-9, should reference the Handbook for Employers M-274 that is available on the U.S. Citizenship and Immigration Services website.
Bill Egan is a Seasoned Employment Law Attorney backed by over 33 years of proven, veteran experience. He specializes in navigating businesses through conflict resolution in the workplace.
Rachell Henning is a third-year student at Mitchell Hamline School of Law's innovative Hybrid program. Rachell is an Avisen Fellow alum who enjoys spending time with her husband and two young daughters when she is not working or studying.