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Jan 8, 2019

Guidance on E-Verify Procedures during the Government Shutdown

Emily C. Brown

With the Government Shutdown still in effect from December 22, 2018, the E-Verify program has also ceased operations.  Employers that have an active license with E-Verify will not be able to create new E-Verify cases to confirm an employee’s work eligibility.  Normally, per Form I-9 regulations, an employer must verify an employee’s work authorization in the United States within three days of hire.  In light of the recent shutdown, E-Verify has issued temporary policies so that employers do not become noncompliant:

  • 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 Tentative Nonconfirmations (“TNCs”) will be extended. 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.
  • We will provide additional guidance regarding “three-day rule” and time period to resolve TNCs deadlines once operations resume.
  • Employers may not take adverse action against an employee because the E-Verify case is in an interim case status, including while the employee’s case is in an extended interim case status due to the unavailability of E-Verify.
  • Federal contractors with the Federal Acquisition Regulation (FAR) E-Verify clause should contact their contracting officer to inquire about extending federal contractor deadlines (/employers/federal-contractors/timeframes-for-enrollment-and-use).

Although there is a temporary halt in operations for E-Verify, employers will be expected to resume normal processing as soon as the Government Shutdown ends and funding is available to E-Verify again.  Therefore, it is recommended that employers keep track of any new hires that are onboarded during the Shutdown.  Then, employers should create new cases with E-Verify as soon as the program is available again.  Employers should also still be following normal Form I-9 protocols when onboarding new hires by having the employee complete Section 1 of Form I-9 by the first day of hire, and the employer completing Section 2 of the Form I-9 within three days of hire.  When it comes to TNCs that occurred prior to the shutdown, employers must follow steps E-Verify will provide once the Shutdown ends.  Pertaining to Federal Contractors with a federal acquisition regulation E-Verify clause, Contractors should work with his or her government contracting officer to determine next steps.

Green and Spiegel will be closely monitoring the situation and will provide an update once the Shutdown has concluded and E-Verify has issued additional guidance.  If you are an employer and have any questions about E-Verify protocols during the Government Shutdown, please contact us immediately.

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