Handling Outstanding E-Verify Cases Delayed by the Government Shutdown

October 17, 2013

By Fredrikson’s Immigration Group

Now that the federal government shutdown has ended, all E-Verify features and services are now available. Employers should resume regular use of E-Verify. Notably, the Form I-9 requirements were not affected by the federal government shutdown, and 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.

U.S. Citizenship and Immigration Services (USCIS) has issued guidance to employers and employees regarding E-Verify services affected by the shutdown, including creation of E-Verify cases for newly hired employees, unresolved Tentative Nonconfirmation notices, SSA Final Nonconfirmation and DHS No Show results received and federal contractor enrollment. USCIS has extended traditional deadlines or implemented alternate procedures for cases affected by the shutdown to ensure employers and employees are able to bring their work authorization verification into compliance.

Procedures for New Employees Hired During the Shutdown

New E-Verify cases must be created for all employees hired during the shutdown by November 5, 2013. Because the creation of the new case does not conform to the three-day rule for these employees, the employer will be prompted for a reason why the case is late. Select “Other” from the drop-down list and enter “Federal Government Shutdown.”

Tentative Nonconfirmations (TNCs) Referred Between September 17 and September 30

For employees with unresolved TNCs referred between September 17, 2013, and September 30, 2013, add 12 federal business days to the date printed on the “Referral Letter” or “Referral Date Confirmation.” Federal business days are Monday through Friday and do not include federal holidays. Employees have until this new date to contact the Social Security Administration or the Department of Homeland Security to resolve their cases. If an employee decided to contest a TNC while E-Verify was unavailable, employers can initiate the referral process in E-Verify now. USCIS has reiterated that an employer should not take any adverse action against an employee because of a TNC. An employer may only act once an SSA Final Nonconfirmation or DHS Now Show result is received.

SSA Final Nonconfirmation (FNC) and DHS No Show Results Received Due to Government Shutdown 

If an SSA FNC or DHS Now Show result was received because of the shutdown, the employer should close the case and select “The employee continues to work for the employer after receiving a [Final Nonconfirmation or No Show] result.” The employer should then enter a new case in E-Verify for the employee to ensure the employee is given enough time to contest and resolve the TNC that led to the FNC result.

Federal Contractors Unable to Meet Enrollment Deadlines Due to Government Shutdown

Federal contractors that missed enrollment deadlines due to the federal government shutdown should follow the E-Verify enrollment requirements under the federal contractor rule. f prompted for a reason why enrollment or other deadlines have been missed the employer should select “Other” from the drop-down list and enter “Federal Government Shutdown” in the field. The employer should also notify its contracting officer of the USCIS instructions.

This new guidance only applies to cases affected by the government shutdown. Starting October 17, 2013, employers and employees should follow all standard employment verification requirements.

For more information on how the federal government shutdown has affected E-Verify and other immigration matters, please contact an attorney in Fredrikson & Byron P.A.’s Immigration Department.