Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
E-Verify, the electronic immigration system that employers use to confirm employees’ eligibility to work in the United States, has resumed operation. E-Verify was unavailable during the longest federal government shutdown in history, which lasted from December 22, 2018 to January 25, 2019. As of January 28, 2019, all E-Verify services are once again available for use, though users may experience longer-than-usual processing times as the U.S. Department of Homeland Security (DHS) works through a large volume of accumulated cases.
In addition to disrupting E-Verify service, the government shutdown caused a lapse in the availability of I-9 support representatives. Despite those service disruptions, employers were required to complete and retain Form I-9 Employment Eligibility Verifications for each person they hired to work for wages or other payment during the shutdown.
By February 11, 2019, E-Verify participants must create an E-Verify case for each employee hired during the service interruption. Employers must use the hire date listed on their employees’ Forms I-9 when creating the E-Verify case, and DHS advises that employers should select the “Other” option from the drop-down list and enter “E-Verify Not Available” to explain situations where the case creation date is more than three days after the date the employee began working for pay.
What to Do With Tentative Nonconfirmations?
DHS also announced directions for employees who receive a Tentative Nonconfirmation (TNC) case result—when the information entered in E-Verify does not match records available to DHS or the Social Security Administration (SSA). DHS guidance requires employers whose employees notified them of the intent to contest a TNC result by February 11, 2019, to revise the date by which the employee must contact DHS or the SSA to begin resolving the TNC. To do so, employers should add 10 federal business days1 to the date on an employee’s “Referral Date Confirmation” notice and give a copy of the revised notice to the employee.2 One practical observation is that since E-verify was not working during the shutdown, the referral would have been more that 35 days ago. Thus, we see a practical, unanswered concern that addition of the 10 days may not bring the referral to a current response period.
DHS’ guidance for revising employee Referral Dates applies only to TNC cases that were referred before January 28, 2019. For TNC cases that were referred after E-Verify resumed operations, employers should not add days to the time their employees have to contact either SSA or DHS.
Extensions for Some Federal Contractor Deadlines
The government shutdown also made E-Verify unavailable for use by federal contractors. Accordingly, DHS guidance is that any calendar day during which E-Verify was unavailable because of the government shutdown should not count towards the federal contractor deadlines found in the Employment Eligibility Verification Federal Acquisition Regulation. As always, federal contractors should contact their contracting officer for more information on federal contractor responsibilities.
E-Verify Support May Be Delayed
DHS is anticipating an increase in E-Verify support requests for assistance as a result of the government shutdown. Accordingly, the agency is cautioning that users may experience longer than normal delays and response times. Employers and employees may contact E-Verify support by e-mail at firstname.lastname@example.org and by telephone at 888-464-4218. For Form I-9 questions, employers and employees may visit I-9 Central (https://www.uscis.gov/i-9-central) or send an e-mail to Iemail@example.com.
Employers with questions or concerns about their E-Verify and Form I-9 obligations following the government shutdown should consult with experienced employment immigration counsel.
1 According to DHS’ guidance, federal business days are Monday through Friday and do not include federal holidays.
2 Employers can reprint a copy of an employee’s “Referral Date Confirmation” by logging in to E-Verify, selecting the employee’s case, and selecting the “Print Confirmation” button.