How to Handle E-Verify During the Government Shutdown

By Suzanne M. Potter-Padilla

The U.S. Department of Homeland Security (DHS) announced Tuesday (Oct. 1) that E-Verify will be unavailable during the federal government shutdown.

Employers will be unable to access their E-Verify accounts, and E-Verify customer support and related services will be closed. This means that employers will be unable to run new hires or take any other action in E-Verify so long as the government shutdown continues.

During the shutdown, DHS is suspending the requirement that employers must verify all new hires within three days of hire. However, E-Verify’s unavailability does not affect employers’ obligation to complete Form I-9 for all new hires within three (3) days of hire.

Shutdown or no, I-9 forms are still required

Employers must continue to abide by their obligations with respect to Form I-9. E-Verify should become available once the shutdown is resolved, and employers should take steps at that time to timely run all new hires through E-Verify.

It is also recommended that employers make note in the I-9 files of any employees impacted by the shutdown that the company was unable to timely run the individual through E-Verify on account of the government shutdown. In the event of an audit in the future, a notation of this kind in the individual’s file will help explain the delay in timely running the individual’s information through E-Verify.

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Also, employees will be unable to resolve any tentative non-confirmations (TNCs) received from E-Verify during the government shutdown. DHS has confirmed that the time period during which employees may resolve TNCs will be extended. Any days the federal government is closed will not count toward the eight (8) business days the employee has to go to DHS or the Social Security Administration to resolve the TNC.

The Department of Homeland Security has also advised any companies with federal contractors to contact the company’s contracting officer to inquire further about extending deadlines.

Finally, DHS has advised that employers may not take any adverse employment action against an employee because of an E-Verify interim case status due to the federal government shutdown. Employers must continue to employ any employees who have TNC’s in E-Verify during the shutdown.

This was originally published on Littler Mendelson’s Global Mobility and Immigration Counsel blog. © 2013 Littler Mendelson. All Rights Reserved. Littler®, Employment & Labor Law Solutions Worldwide® and ASAP® are registered trademarks of Littler Mendelson, P.C.

Suzanne M. Potter-Padilla is an associate in the Houston office of the law firm Littler Mendelson. She represents employers in federal and state courts, as well as before administrative agencies such as the Equal Employment Opportunity Commission and the Texas Workforce Commission, in a broad range of employment law matters arising under federal and state laws. Contact her at spotter@littler.com.

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