E-Verify Accommodations Due to Federal Shutdown

As has been widely reported in the media, the U.S. government temporarily ceased operations deemed non-essential as of October 1, 2013. This is a result of the failure of the U.S. Congress to agree on a new budget for federal operations. Many normal government functions have stopped due to a lack of funding approval. Included among these is E-Verify, which is critical to many employers. Fortunately, the USCIS has procedures in place to grant certain allowances to participating E-Verify employers during a government shutdown.

Basics of E-Verify

E-Verify is a mostly-voluntary employment-authorization verification program for U.S. employers. Employers enroll and sign an agreement with the federal government, and in exchange, are given the ability to check the employment eligibility of new hires and are afforded certain legal protections related to form I-9 compliance. This program has been promoted as an effective way for employers to reduce the chances of inadvertently employing individuals who lack the requisite work authorization. The E-Verify program is discussed in greater detail in the MurthyDotCom NewsBrief, E-Verify Self-Assessment Guides for Employers (21.Aug.2012).

E-Verify Services Unavailable

On October 1, 2013, the U.S. Citizenship and Immigration Services (USCIS) announced that E-Verify will be unavailable for use until the government resumes regular operations. This means that during the government shutdown, employers are not able to enroll in the E-Verify program, verify the employment eligibility of new hires through E-Verify, or make changes to employer E-Verify accounts. E-Verify customer support is also unavailable during this time.

Allowances Granted to Employers During Outage

The problem for E-Verify employers is that, in the absence of an operational E-Verify system, it is impossible for them to comply with the requirements under the law and the terms of the agreements they signed. For this reason, the USCIS has established policies to reduce potential problems and disruption for employers when E-Verify is unavailable because of a government shutdown.

Employers must comply with the standard form I-9 verification process as normal, despite the E-Verify outage. However, E-Verify employers do not need to comply with the three-day timeline for veification of employment eligibility through E-Verify. For E-Verify requests submitted before the shutdown, the USCIS has stated that employers may not take any adverse action against an employee due to an interim case status received from E-Verify prior to the system’s unavailability. Importantly, if employers received a tentative nonconfirmation (TNC) of a new hire’s employment eligibility, these TNCs cannot be resolved until the U.S. government resumes normal operations and E-Verify is back online. The days the government is closed will not count against the time limit employers have to resolve TNCs. The USCIS policy statement indicates that further guidance will be issued once the government reopens.

Conclusion

The unavailability of the E-Verify program presents concerns for managers and human resources personnel at many companies. It is important to heed the instructions from the USCIS about not taking adverse action against an employee because of an interim case status result from E-Verify until the situation can be cleared. The Murthy Law Firm is available to help employers who have questions regarding E-Verify, form I-9 compliance, and related issues.

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