E-Verify System Available Again – Important Post-Shutdown Notes and Guidance

As an E-Verify designated agent, the Capitol Immigration Law Group handles the E-Verify processing for many employers and we would like to pass on some important post-government shutdown E-Verify information to our clients and to all companies who are working with E-Verify.     Most importantly, USCIS has confirmed that the E-Verify system is now back online and operational.  As a reminder, even though USCIS was largely not affected by the shutdown, the E-Verify system had to be shut down on October 1 as part of the partial government shutdown.   But as the government is not open again, E-Verify is now back online.

Form I-9 Requirements Not Affected By Shutdown

The Form I-9 requirements were not affected during the federal government shutdown. All employers must complete and retain a Form I-9 for every person hired to work for pay in the United States during the shutdown.

E-Verify 3-Day Requirement Extended to November 5, 2013 for Shutdown-Affected Cases

E-Verify requires that an employer create and submit an E-Verify case check within 3 days of hire.   However, due to the shutdown, this was not possible and now USCIS is providing some guidance to those E-Verify cases which were delayed due to the shutdown.

According to USCIS, each employer (or their designated agent) must create an E-Verify case for each employee hired during or otherwise affected by the shutdown by November 5, 2013.   If the employer is prompted to provide a reason why the case is late (i.e., does not conform to the three-day rule), select ‘Other’ from the drop-down list of reasons and enter ‘federal government shutdown’ in the field.

Employees who received a Tentative Nonconfirmation (TNC).   If an employee had a TNC referred between September 17, 2013 and September 30, 2013 and was not able to resolve the TNC due to the federal government shutdown, USCIS instructs the employer to add 12 federal business days to the date printed on the ‘Referral Letter’ or ‘Referral Date Confirmation.’ Employees have until this new date to contact the Social Security Administration (SSA) or the Department of Homeland Security (DHS) to resolve their cases. If there is an employee who decided to contest his or her TNC while E-Verify was unavailable, the employer should now initiate the referral process in E-Verify. Employers may not take any adverse action against an employee because of a TNC.

Employees who received a SSA Final Nonconfirmation (FNC) or DHS No Show Result.   If an employee received a Final Nonconfirmation (FNC) or No Show because of the federal government shutdown, USCIS instructs the employer to close the case and select “The employee continues to work for the employer after receiving a Final Nonconfirmation result,” or “The employee continues to work for the employer after receiving a No Show result.” The employer must then enter a new case in E-Verify for that employee. These steps are necessary to ensure the employee is afforded the opportunity to timely contest and resolve the Tentative Nonconfirmation (TNC) that led to the FNC result.

E-Verify and Federal Contractors

During the federal government shutdown, federal contractors could not enroll or use E-Verify as required by the federal contractor rule. If your organization missed a deadline because E-Verify was unavailable or if it has an upcoming deadline for complying with the federal contractor rule, USCIS advises the organization to notify their contracting officer.

Employees Afforded Additional Time to Contest Tentative Nonconfirmation (TNC)

If the federal government shutdown prevented an employee from contesting a Tentative Nonconfirmation (TNC), USCIS advises that the employee will be allowed additional time to contact the Social Security Administration (SSA) or Department of Homeland Security (DHS).  If the TNC was referred between September 17, 2013 and September 30, 2013, and the employee was not able to resolve the mismatch due to the federal government shutdown, the employee should add 12 federal business days to the date printed on the ‘Referral Letter’ or ‘Referral Date Confirmation’ that the employer provided after the employee contested the TNC. Federal business days are Monday through Friday and do not include federal holidays.   The employee should then contact SSA or DHS by the new date to resolve the TNC.

On the other hand, if an employee received a Final Non-Confirmation (FNC) because the employee could not contact DHS or SSA during the federal government shutdown, or because the employee could not contact DHS or SSA in the first ten days after the government reopened, the employee should contact the employer and request that the employer re-enter the employee’s query.

Conclusion

We hope that these notes and guidance from USCIS on what E-Verify employers and affected employees should do if their case is affected by the shutdown is helpful to our clients and readers.    We should caution that the E-Verify system may experience delays and glitches as a result of the shutdown and the increased usage of the system.

As a designated E-Verify agent, we are able and happy to handle this (and related E-Verify) processes on behalf of our corporate clients.    Please feel free to contact us if our office can be of any assistance or if we can provide an E-Verify services proposal.   Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.