As the impasse continues regarding government funding, E-Verify employers are left with an ongoing challenge to keep track of Forms I-9 that they must complete or update timely, but are unable to access their E-Verify accounts to create the required new cases or make necessary modifications or updates. On December 22, 2018, E-Verify became inaccessible since E-Verify is a program subject to operation based on appropriated funds.

The posting on the E-Verify site indicates that the following polices are in place to try to reduce the impact of the government shutdown:

  • Suspension of the three-day rule for creating E-Verify cases.
  • Extension of the resolution period for Temporary Non-Confirmation (TNC) cases. Days during which the E-Verify system is not available are not to be counted toward the compliance deadline.
  • Additional guidance will be posted regarding the three-day rule and TNC deadlines when the system is operational.
  • Employers may not take any adverse action against an employee while the employee’s case is in an extended interim case status due to the unavailability of E-Verify.
  • Federal contractors that must comply with the Federal Acquisition Regulations (FAR) E-Verify clause should contact their contracting officer regarding requests to extend E-Verify related federal contractor deadlines.

Does this E-Verify account shutdown affect deadlines or the process to complete the Form I-9? No.

What should employers be doing during this lapse of E-Verify account access?

  • Keep track of all I-9s completed for new hires from December 22, 2018, since the information will have to be updated in the employer’s E-Verify account, when accessible. Back in 2013, employers were told to select the “other” option as to late completion reasons and enter, “federal government shutdown.” Of course, employers will have to address potential staffing demands to enter this data when the E-Verify system is resurrected.
  • Create a record of any I-9s that were not able to be updated (e.g., employment updates, necessary corrections, etc.).
  • Create a list of any TNCs referred to an employee on or before December 22, 2018 which were unable to be resolved since the employee will be allowed additional time to resolve the TNC due to the account access lapse. In the past, post a shutdown, the employee was allowed an additional 12 federal business days to the date printed on the Referral Letter/Referral Date Confirmation to resolve the TNC. In addition, employers were instructed that if an employee decided to contest a TNC while E-Verify was unavailable, employers should initiate the referral process post access being commenced in E-Verify again.
  • As to employees who received a Final Non-confirmation (FNC) from the Social Security Administration (SSA) or No Show result from the Department of Homeland Security (DHS) due to the shutdown, employers were instructed in 2013 to close the case in E-Verify upon availability and select:
  1. The employee continues to work for the employer after receiving a Final Nonconfirmation result; Or
  2. The employee continues to work for the employer after receiving a No Show result.

Then employers were advised to enter a new case in E-Verify for the employee to allow the employee time to contest and resolve the TNC, which resulted in the FNC.

As noted currently on the E-Verify webpage, employers will be notified of actions to take when E-Verify is again operational. Those actions may vary from what happened in 2013, but it is important to recognize that taking pro-active steps now to identify what the potential human resources burden may be can be a time saver.

About the Author:

Kathleen Campbell Walker is a Member of Dickinson Wright PLLC. She was national president of the American Immigration Lawyers Association (AILA) from 2007 to 2008.  She is board certified in Immigration and Nationality law by Texas Board of Legal Specialization.  In 2014, she was the recipient of the AILA Founder’s Award, which is awarded from time to time to the person or entity who has had the most substantial impact on the field of immigration law or policy in the preceding period (established 1950).  She has testified before Congress on matters of immigration policy and border security.  She served on the 2009 Independent Task Force on U.S. Immigration Policy of the Council on Foreign Relations chaired by Thomas F. McLarty III and Jeb Bush. She may be reached in our El Paso, TX office at 915-541-9360 and you may view Kathleen’s bio here.