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E-Verify in the Event of a Government Shutdown

Upcoming Seminars

By Julie A. Pace (602.322.4046)

Congressional delegates from the Republican and Democratic parties worked out a deal on Sunday, April 30, 2017, to keep the government operating through September 2017. The agreement still has to be approved by the full House and Senate and signed by the President before it becomes effective.

If the bill is not adopted and a government shutdown occurs, employers will be unable to use E-Verify or obtain I-9 or E-Verify support through the Customer Support lines. Therefore, employers will not be able to use E-Verify to confirm employment authorization within the required three (3) days after the date of hire. Further, employers will not be able to resolve any outstanding Tentative Non-Confirmation results that are pending when the government shuts down.

So what should employers do? There is no specific guidance by the Government in these circumstances but here are reasonable options:

(1) Complete the Form I-9 within three (3) days after the date of hire as required by the Immigration Reform and Control Act.
(2) Keep a file of the I-9s for employees who are hired during the government shutdown and have not been through E-Verify in preparation for completing E-Verify when it becomes available.
(3) Keep a list of the open TNC’s but do not take adverse action against employees who have an outstanding TNC that cannot be resolved because of the government shutdown.
(4) Be prepared for the additional cases that you will have to process after E-Verify becomes available.

After the government shutdown in 2013, the USCIS provided an additional 12 federal business days to the date of the referral letter to resolve any tentative non-confirmation that had already been referred to DHS or SSA. If an employee contested, but E-Verify was already unavailable, employers were instructed to initiate the contest process when E-Verify was again available.

In 2013, after the Government began operations again from the shutdown, USCIS gave employers a deadline for completing the E-Verify cases for employees who were hired during the government shutdown that was approximately three weeks after the E-Verify system became available. Employers were told to write “Federal Government Shutdown” in the field asking for the reason why the case was entered more than three days after the date of hire. Similar guidance may be issued in this circumstance.

If there is a government shutdown, employers should ensure that they continue to timely complete the Form I-9 and be prepared to complete the E-Verify queries timely after the government and E-Verify resumes.

And, this is a good time to remind companies to complete I-9 and E-Verify audits, review procedures for addressing identity mismatch issues, review immigration compliance policies and new hire documents, and ensure your Company has appropriate immigration compliance procedures and systems in place. Companies should also be prepared on how to handle an ICE audit. Some companies may want to join the ICE image program. It is in the best interests of companies to review and take steps to ensure compliance and best practices.

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April 30, 2017