Employers who use the federal government’s electronic employment verification system to run checks on new workers will not be able to access their accounts during the shutdown. The U.S. Citizenship and Immigration Services has announced key policies to minimize this burden, including suspension of the three-day-rule, and extension of when employees may resolve tentative nonconfirmations.
U.S. Citizenship and Immigration Services (USCIS) has stated that employers will not be able to access their E-Verify accounts, the federal government’s electronic employment verification system, during the government shutdown, the Society for Human Resource Management (SHRM) reported. However, “to minimize the burden on both employers and employees,” the agency has announced the following key policies:
- The “three-day rule” for E-Verify cases is suspended for cases affected by the shutdown. USCIS will provide additional guidance once it reopens. This does not affect the Form I-9 requirement—employers must still complete the Form I-9 no later than the third business day after an employee starts work for pay.
- The time period during which employees may resolve tentative nonconfirmations (TNCs) will be extended. “Days the federal government is closed will not count towards the eight federal government workdays the employee has to contact the Social Security Administration (SSA) or the Department of Homeland Security (DHS),” the agency said.
Throughout the duration of the government shutdown, employers will be unable to:
- Enroll in E-Verify.
- Verify employment eligibility.
- View or take action on any case.
- Add, delete or edit company information.
- Reset passwords.
- Terminate an account.
- Run reports.
In addition, E-Verify Customer Support and related services are closed, SHRM reported.
Normally, the employer enters information from the I-9 into E-Verify within three days of hire, but that won’t be possible while the system is unavailable, said Josie Gonzalez, partner at Stone Grzegorek & Gonzalez, during an October 3 seminar.
Employers may not take any adverse action against an employee while the employee’s case is in an extended interim case status due to the federal government shutdown, USCIS said.
“Don’t fire anyone because you can’t resolve a TNC,” said Wendy Madden, counsel at Balch and Bingham, based in Birmingham, Ala. “Continue to treat them the same as you would during the eight-day period, providing training, benefits etc.”
Also, don’t refuse to hire anyone because they can’t be verified in the system. “No worker should be prejudiced because of the shutdown. There will be some enforcement if you take these actions against employees, once the government resumes operations,” Madden said.
The backlog created as a result of the shutdown might have a significant impact on employers who process many E-Verify cases and specifically on the HR staff members and other team members in charge of the E-Verify process, said Ann Cun, immigration attorney and counsel for LawLogix. “If you haven’t already, plan, plan and plan some more, because it’s unclear how long a shutdown may last,” she said.
Here are some tips to prepare for the resumption of E-Verify service:
- Prepare for the increased volume of cases. Keeping good records is critical. Document all the cases you’ve hired that you haven’t run through E-Verify. “If you don’t keep track of who has or hasn’t been run through E-Verify, you will have a problem,” Cun said.
- Designate specific personnel to complete the follow-up process in E-Verify once the system resumes. Develop a way to follow up with the employees who have completed the Form I-9 process but still need to be run through E-Verify. “This makes sense, especially if you have a large team processing I-9s,” said Madden. “This will offer more control and make it less likely that people fall through the cracks.”
- Align with legal counsel or your compliance team to ensure a uniform message is indicated in the E-Verify system as to why the cases were delayed.
- When E-Verify service resumes, there is an option to alert USCIS of issues encountered during the shutdown.
If an E-Verify case is not created by the third business day after the employee begins work for pay, the user must indicate the reason for the delay. Select from one of the following reasons:
- Awaiting Social Security number
- Technical Problems
- Audit Revealed that New Hire Was Not Run
- Other
Select “Other,” then enter “government shutdown” in the field provided, she advised.
It’s been reported that some employers have been skittish to hire because of the E-Verify shutdown—the experts say don’t be afraid, SHRM reported. “Your I-9, completed in good faith, is your affirmative defense if the government says that you knowingly hired unauthorized workers,” said Gonzalez. “If your business requires it, and you have job applicants, go ahead and hire the people you need.”
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