When the Government Shuts Down, So Does E-Verify

Government shutdowns seem to be occurring all too frequently.  Although President Trump recently signed a bill to end the most recent government shutdown on January 25, 2019, it is only a short-term bill, which means another shutdown could be looming in the coming weeks.

Government shutdowns cause numerous issues, but one that employers should be aware of is that shutdowns prevent access to E-Verify.  E-Verify, which is overseen by the Department of Homeland Security (DHS), is a web-based system that allows enrolled employers to confirm the eligibility of their employees to work in the United States.  E-Verify helps employers by verifying the identity and employment eligibility of newly hired employees by electronically matching information provided by employees on the Form I-9 against records available to the Social Security Administration (SSA) and DHS.

During the most recent shutdown, some employers were surprised to find the following notice posted on the E-Verify website: “NOTICE: Due to the lapse in federal funding, this website will not be actively managed … E-Verify and E-Verify services are unavailable.”

So how should employers who use E-Verify proceed when there is a government shutdown?

Because E-Verify and its services are unavailable, employers should understand that they will not be able to access their E-Verify accounts to enroll in the program; create a case; view or take action on any case; add, delete or edit accounts; reset passwords; edit company information; terminate accounts; or run reports.  Also, employees will be unable to resolve E-Verify Tentative Nonconfirmations (TNCs).

During the most recent shutdown, DHS issued the following guidance for employers given that E-Verify’s unavailability would have a significant impact on employer operations:

  • The “three-day rule” for creating E-Verify cases is suspended for cases affected by the unavailability of E-Verify.
  • The time period during which employees may resolve TNCs will be extended. The number of days E-Verify is not available will not count toward the days the employee has to begin the process of resolving their TNCs.
  • DHS will provide additional guidance regarding the “three-day rule” and time period to resolve TNCs deadlines once operations resume.
  • Employers may not take adverse action against an employee because the E-Verify case is in an interim case status, including while the employee’s case is in an extended interim case status due to the unavailability of E-Verify.
  • Federal contractors with the Federal Acquisition Regulation (FAR) E-Verify clause should contact their contracting officer to inquire about extending federal contractor deadlines.

Importantly, even though E-Verify is not available during shutdowns, Form I-9 requirements remain unchanged.  In its guidance, DHS advised that the lapse in government appropriations did not affect Form I-9 employment eligibility verification requirements. Even during a shutdown, employers must complete the Form I-9 no later than the third business day after an employee starts work for pay, and comply with all other Form I-9 requirements.

Now that the federal government has reopened, the E-Verify website has a new notice regarding the recent shutdown: “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.”  Employers should keep in mind, however, that the bill reopening the government is only a temporary funding measure.  If another shutdown occurs in the next few weeks, employers can expect E-Verify to shut down again, too.

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