Despite E-Verify Shutdown, Employers Must Still Comply With I-9 Rules

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Jan 7, 2019

Ironically for a government shut down over issues of illegal immigration, one of the few ways US employers have of verifying the right to work status of new hires is also shut down.

E-Verify became unavailable when the partial shutdown of the US government began December 22nd. A message on the website tells employers they won’t be able to access their accounts or verify the work eligibility of new hires. Likewise, workers will not be able to resolve E-Verify Tentative Nonconfirmations (TNC) and myE-Verify will be unavailable.

Because of the system’s unavailability, the Department of Homeland Security, which operates the service, has suspended the three day rule. The rule requires E-Verify employers to submit a new hire for verification no later than three days after the new hire begins work for pay. The time for employees to resolve a TNC is also extended at least for the duration of the shutdown and probably for at least some time after.

Employers with workers whose I-9 documentation couldn’t be verified and were notified of nonconfirmation may not take action against those workers, the E-Verify website cautions: “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.”

Despite the inaccessibility E-Verify, employers still have to comply with the I-9 rules. The form  has sections that must be completed within three days by the employee and employer respectively. Employees must provide verification of their eligibility to work in the US. Several different types of documents are acceptable including voter registration card, passport, Employment Authorization Card and driver’s license. Some documents establish only eligibility to work. Some may be used to prove identify and some may be used for both purposes.

The E-Verify website also notes that “Federal contractors with the Federal Acquisition Regulation (FAR) E-Verify clause should contact their contracting officer to inquire about extending federal contractor deadlines.”