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.
When the federal government partially shut down on December 22, 2018, so did E-Verify, the online system for verifying a new hire’s eligibility to work. Employers that are obligated to or have chosen to use E-Verify have probably already received this message from the E-Verify website: "NOTICE: Due to the lapse in federal funding, this website will not be actively managed. E-Verify and E-Verify services are unavailable.” But what does this notice actually mean for employers?
In a nutshell, the E-Verify system is completely unavailable. This means employers will not be able to access their E-Verify accounts to:
- Enroll in E-Verify;
- Create an E-Verify case;
- View or take action on any case;
- Add, delete, or edit any user account;
- Reset passwords;
- Edit company information;
- Terminate accounts; and
- Run reports.
Additionally, E-Verify Customer Support and related services will be closed, meaning:
- Employees will be unable to resolve Tentative Nonconfirmations (TNCs);
- Email and telephone support will be unavailable;
- Individuals will be unable to access myE-Verify; and
- E-Verify webinars and training sessions will be cancelled.
To minimize the burden on both employers and employees, the U.S. Citizenship and Immigration Services (USCIS), which governs E-Verify, has implemented the following policies:
- The “three-day rule” for creating E-Verify cases is suspended for cases affected by the unavailability of E-Verify.
- The time period during which employees may resolve TNCs will be extended. The number of days E-Verify is unavailable will not count toward the days employees have to begin the process of resolving their TNCs.
As with prior shutdowns, USCIS will provide additional guidance regarding the “three-day rule” and time to resolve TNC deadlines once operations resume. Until then, however, employers are reminded that the partial shutdown does not affect the Form I-9, Employment Eligibility Verification requirements. Employers must still complete 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 outlined in the Handbook for Employers (M-274).
We advise that once the E-Verify system is functional, the E-Verify inquiry be processed on the employees who have been subject to the shutdown freeze period. The E-Verify inquiry may trigger a question requesting why the employer is outside the three-day window. If not inserted as an option, we advise typing: “Federal Government Shutdown” under the “other” drop-down selection.
Because some federal contractors are required by law as well as contract to use E-Verify, federal contractors with the Federal Acquisition Regulations (FAR) E-Verify clause in their agreements should contact their contracting officer to inquire about extending E-Verify deadlines. The FAR does not specify what actions to take when there is a government shutdown, which suggests contracting officers have some discretion to determine extensions on a contract-by-contract or agency-by-agency basis. Federal contractors, like all other E-Verify users, should continue to timely complete I-9 forms regardless of any extension provided to E-Verify timelines by a contracting officer.