What Should an Employer do now that E-Verify is Up-and-Running Again?

By Marylou V. Fabbo - Skoler, Abbott & Presser, P.C.

January 31, 2019

The E-Verify electronic employment eligibility verification service was unavailable during the 35-day government shutdown due to a lack of federal funding for the U.S. Department of Homeland Security (DHS).  If you use E-Verify and hired anyone during the government shutdown between December 22, 2018 and January 25, 2019, you might be wondering what to do now-and at least until February 15, when another shutdown is possible.  Hopefully, you continued to timely complete Form I-9s even when E-Verify was not up and running.

Creating E-Verify Cases

Employers have until February 11, 2019, to create cases for employees hired while E-Verify was down.  Usually, employers have three business days from an employee’s start date to do so.  Employers should use the date of hire that is on the employee’s I-9 Form when creating the case in E-Verify.  It’s unclear whether the E-Verify system is going to prompt you to enter the reason for the late submission. If it does, you should select “other” from the drop-down list and indicate that E-Verify was not available.  Employers who hired anyone during the week of January 28 must still comply with the three-day rule.  If you are a federal contractor, any calendar day during which E-Verify was not available won’t be counted toward your federal contractor deadlines.

Tentative Nonconfirmations (TNCs)

If an employee notified you by December 21, 2018, of the intention to take action to resolve a TNC, the referral deadline is ten business days from when the government re-opened, which was officially January 28, 2019.   That brings the new deadline to February 11, 2019.  The employee has until that date to contact the Social Security Administration or DHS to begin resolving the TNC.  Cases referred after E-Verify resumed operations don’t qualify for this extension.

Expect Delays

There are likely to be a lot of requests for assistance as well as delays in processing times now that E-Verify is running again. Hopefully, employers will get their E-Verify situations resolved before the possible shutdown in February.

Stay up to Date

If you are interested in receiving similar updates, Skoler Abbott has another blog, Immigration @ Work, that keeps employers up to date on immigration related issues in the workplace.  You can sign up for the blog here.