federal government shutdown

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.

Due to the federal government shutdown E-Verify — the electronic employment eligibility verification program that compliments the Form I-9 — is unavailable.  This means, among other things, that employers cannot access their E-Verify account during this time and until the federal government reopens. This will affect employers ability to enroll in E-Verify, create cases and address Tentative Non-Confirmations (TNCs).  The shutdown could end as early as today if Congress passes another stop-gap funding measure funding the government through February 8, 2018.

In the meantime, employers must still complete the Form I-9 for all new hires.  However, if you participate in E-Verify you will not be able to create a case and must do so when E-Verify is again available.  Read more about how to address the three business day window (which employers will not meet) for creating cases in E-Verify as a result of the federal government shutdown by clicking here.

Hours before the government was due to shut down, the President signed into law a stopgap measure which will fund the federal government through December 11, 2015.   The possibility of a government shutdown would have affected, among other programs, the E-Verify program administered by U.S. Citizenship and Immigration Services (USCIS).     Similar to the 2013 federal government shutdown, which forced USCIS to pull the plug on employers’ use of the E-Verify system due to a lack of government funding, there would have been a repeat situation. 

Passage of H.R. 719 removes the immediate threat of a government shutdown.  For purposes of the E-Verify program, passage of H.R. 719 is noteworthy as not only is the program funded through December 11, 2015, its authorization to exist as a program was also extended until December 11, 2015.  For those keeping close tabs on E-Verify, you will know that congressional authorization for E-Verify expired September 30, 2015.  Negotiations are on-going in Congress to reauthorize the program for a period of 3 to 5 years.

 

The U.S. Government has shut down due to the inability of Congress to reach an agreement regarding a continuing resolution to fund the U.S. government.   While not all operations and functions of the federal government will be shutdown starting today, expect many government agencies to be affected as staff are furloughed.  It is unknown how long this shutdown will last and the solution rests with Members of Congress.

Over at U.S. Citizenship and Immigration Services (“USCIS”), which administers the electronic employment eligibilityverification program, please note that the E-Verify site is down. Click here to read the announcement by USCIS.  This is a direct result of the government shutdown.

 Here’s what it means to employers:

  •  You won’t be able to access your account, which means you cannot verify employment eligibility within the prescribed three business day window of time.
  •  E-Verify Customer Support is closed and that means employees will be unable to resolve Tentative Non-confirmations (“TNC”) if those were in the process of being resolved.
  • E-Verify webinars and training sessions are cancelled.
  • E-Verify Self-Check is not available.

What is USCIS saying about how this may impact employers?  Here is the policy they are implementing:

  • The “three-day rule” for E-Verify cases is suspended for cases affected by the shutdown.   HOWEVER, you must still complete the Form I-9 for new hires.
  • The time period during which employees may resolve TNCs will be extended. Days the federal government is closed will not count towards the eight federal government workdays the employee has to go to the Social Security Administration or contact the Department of Homeland Security.
  • For federal contractors complying with the federal contractor rule, contact your contracting officer to inquire about extending deadlines (assuming they haven’t been furloughed).
  • USCIS is stating that employers may not take any adverse action against an employee because of an E-Verify interim case status, including while the employee’s case is in an extended interim case status due to a federal government shutdown.