The longest government shutdown is over and employers need to take note that E-Verify is again operational.  Setting aside that Congress and the President have only until February 15 to move beyond short term funding for the Department of Homeland Security (DHS), here is what employers need to know about E-Verify, the electronic employment eligibility verification program run by U.S. Citizenship and Immigration Services (USCIS).  But first, this caveat (click here) direct from USCIS–“E-Verify has resumed operations. Given that E-Verify was unavailable for over a month, we ask for your patience as we reinstate the service.”

  • All of the cases that you, as an employer, are holding because you hired someone during the time period that a E-Verify was offline due to the partial government shutdown now need to be entered into the system.  Employers have until February 11, 2019 to do so, according to USCIS.  Therefore, a case needs to be created for all employees you hired for whom a Form I-9 was completed but you could not create a case in E-Verify because the system was offline due to the shutdown.
    • USCIS Instructions: employers who participate in E-Verify must create an E-Verify case by February 11, 2019 for each employee hired while E-Verify was not available. You must use the hire date from the employee’s Form I-9 when creating the E-Verify case. If the case creation date is more than three days following the date the employee began working for pay, select “Other” from the drop-down list and enter “E-Verify Not Available” as the specific reason.
  • Any pending Tentative Nonconfirmation (TNC) that you and/or your newly hired employee were not able to resolve due to the shutdown needs to be resolved at this time.
    • USCIS Instructions: if your employee received a TNC and notified you of his or her intention to contest it by February 11, 2019, you must revise the date by which your employee must contact the Social Security Administration (SSA) or DHS to begin resolving the TNC. To do this, add 10 federal business day[s] to the date on your employee’s “Referral Date Confirmation” notice. Federal business days are Monday through Friday and do not include federal holidays.  Give the revised notice to your employee.
    • You may reprint a copy of your employee’s “Referral Date Confirmation” by logging in to E-Verify, selecting your employee’s case and selecting the “Print Confirmation” button. Be sure to cross out the old date and insert the new date. Employees have until this new date to contact the SSA or DHS to resolve their cases, as applicable.
    • For TNC cases that were referred after E-Verify resumed operations, do not add days to the time your employee has to contact either SSA or DHS. If your employee decided to contest the TNC when E-Verify was unavailable, you should now refer the employee’s case and follow the TNC process.
  • If you are a federal contractor, contact your contracting officer about enrollment and use and the impact of the government shutdown on you.
    • USCIS Instructions: during the DHS lapse in appropriations E-Verify was not available for federal contractor enrollment or use.  As a result, DHS guidance is that any calendar day during which E-Verify was unavailable due to the lapse in appropriations should not count towards the federal contractor deadlines found in the Employment Eligibility Verification Federal Acquisition Regulation. Please contact your contracting officer for more information on federal contractor responsibilities.

To read the full instructions from USCIS on employer and employee responsibilities now that E-Verify is back online, click here.

Expect delays due to the sheer volume of “past” E-Verify cases that need to be created in addition to the fact that employers continue to hire every day and that adds to the queue of cases being created in E-Verify at any one point in time.  Finally, employers, you only have a little over two weeks to bring yourself into compliance with the E-Verify requirements given the February 11, 2019 deadline.