The partial federal government shutdown resulting from the fight over the best and most cost effective way to protect the US and its citizens from the threat of illegal immigration has effected hiring for any company that uses the E-Verify system in a highly ironic way. (This includes all companies in the state of South Carolina).
E-Verify, the government’s system for verifying a new hire’s eligibility to work and reducing unauthorized illegal immigration employment, has been shut down. So while bickering takes place in Washington over the funding of a wall, the ability to use E-Verify to protect american jobs and ensure companies hire a legal workforce has been disbanded in the desert without a horse.
Makes total sense, Right!
This is one of many shutdown paradoxes for sure, which is especially noticeable today as employers begin to onboard their newest batch of hires in 2019. As it stands now, potential options to reopen portions of the government are being sent through congress, but it’s anyone’s guess as to whether the parties can come to an agreement which will enable the government to re-open its doors, or simply the doors to the Department of Homeland Security.
Many employers may remember the last big federal government shutdown (in 2013), when the E-Verify system remained offline for 16 days – leading to a huge backlog of new hire cases and pending resolutions which had to be addressed when the government finally reopened and the system resumed operations. For those of you who weren’t involved with I-9s and E-Verify back in 2013 (including myself), here are some FAQs and best practices on how to manage your I-9 and E-Verify cases during this latest government shutdown.
It is important to note that the USCIS may change their current instructions for managing the E-Verify shutdown once the government resumes. With that caveat in mind, let’s begin!
(1) When did the E-Verify shutdown begin?
Contrary to what you might think, E-Verify did not immediately cease operations when the federal government officially ran out of money. The system actually continued accepting new cases throughout the morning and early afternoon on Saturday, December 22nd before coming to an abrupt halt.
(2) How exactly is E-Verify affected by this latest government shutdown?
In a nutshell, the E-Verify system is totally unavailable. This means employers (and E-Verify employer agents) will be unable to do any of the following:
- Enroll any company in E-Verify
- Create an E-Verify case
- View or take action on any case
- Add, delete or edit any User ID
- Reset passwords
- Edit your employer information
- Terminate an account
- Run reports
In addition, E-Verify Customer Support and related services will also be closed as well. This means:
- Employees will be unable to resolve Tentative Nonconfirmations (TNCs)
- Telephone and e-mail support will be unavailable.
- E-Verify webinars and training sessions will be cancelled
- myE-Verify will not be available for individuals
(3) How do I manage my I-9 and E-Verify obligations for new hires during the shutdown?
The first and most important thing to note is that you must still complete the Form I-9 for all new hires, regardless of whether or not the E-Verify system is online, offline, or just taking a temporary break. As we often discuss, E-Verify is never a replacement for the Form I-9 process, and so the federal government shutdown should have absolutely no impact on your regular and routine I-9 obligations.
Once the Form I-9 is completed, however, you will be unable to create a case in the E-Verify system within three business days after the employee starts work for pay (as is required by the E-Verify system). This so-called ‘three-day rule’ for E-Verify cases will be suspended for cases affected by the shutdown, but employers will need to eventually submit these I-9s to E-Verify once the system comes back online.
In 2013, the USCIS provided employers with a limited amount of time to enter/create all of these cases, so employers will want to make sure to keep track of all new hires during the shutdown and maintain easy access to the I-9 files (as well as copies of required supporting documents for photo matching). Employers using electronic I-9 systems can benefit from automatic queuing and submitting of the E-Verify cases – saving a significant amount of time and worry.
(4) How do I manage pending TNCs that I received prior to the government shutdown?
If the federal government shutdown prevented your employee from contesting a Tentative Nonconfirmation (TNC), he or she will be allowed additional time to contact the Social Security Administration (SSA) or Department of Homeland Security (DHS) once the system resumes. According to the latest guidance, 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.
Employers should be careful not to take any adverse action towards employees with TNCs during the shutdown, including terminating, suspending, or withholding training, hours, or pay.
(5) How will the government shutdown affect federal contractors or subcontractors with looming E-Verify deadlines?
Federal contractors and subcontractors will be unable to enroll or use E-Verify as required by the FAR (federal acquisition regulation) federal contractor rule. If your organization misses a deadline because E-Verify is unavailable or if it has an upcoming deadline for complying with the federal contractor rule, you will be instructed to complete your cases (following the same guidelines mentioned above) and to notify your contracting officer of these instructions.
Hopefully you will keep these things in mind while employing your new hires during this impasse of government. I know it feels like a wall of paperwork is building up, but with planning and organization, eventually you will make it to the other side.
(all puns intended)