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Shutdown Seen Causing E-Verify Delays

Employers were required to continue processing Forms I-9 during shutdown.

Along with many other federal agencies, the U.S. Department of Homeland Security (DHS) was impacted by the partial government shutdown and as a result announced there will be delays in processing forms and responding to requests for assistance.

Although Form I-9 support representatives were not working during the 35 days of the shutdown, employers were expected to continue completing Form I-9 Employment Eligibility Verifications for every person hired within three days after they began work.

By no later than Feb. 11, E-Verify participants must create an E-Verify case file for each employee hired during the service interruption. Employers must use the hire date listed on their employees’ Forms I-9 when creating the case. DHS suggests that employers select the “Other” option from the drop-down list and enter “E-Verify Not Available” to explain situations where the case creation date is more than three days after the date the employee began work.

DHS also announced directions for employees who receive a Tentative Nonconfirmation (TNC) case result. This happens when the information entered in E-Verify does not match records available to DHS or the Social Security Administration (SSA).

DHS requires employers whose employees had notified them of their intention of contesting a TNC result by Feb. 11, to revise the date by which the employee must contact DHS or the SSA to begin resolving the TNC case.

To do so, employers should add 10 federal business days to the date on an employee’s “Referral Date Confirmation” notice and give a copy of the revised notice to the employee, say attorneys Olaoluwaposi (Posi) O. Oshinowo and Jorge R. Lopez of the law firm of Littler Mendelson.

“One practical observation is that since E-Verify was not working during the shutdown, the referral would have been more than 35 days ago,” they add. “Thus, we see a practical, unanswered concern that addition of the 10 days may not bring the referral to a current response period.”

The DHS guidance for revising employee Referral Dates applies only to TNC cases that were referred before Jan. 28, 2019, Oshinowo and Lopez explain. For TNC cases that were referred after E-Verify resumed operations, employers should not add days to the time their employees have to contact either SSA or DHS.

The government shutdown also made E-Verify unavailable for use by federal contractors, the attorneys note. As a result, DHS guidance is that any calendar day during which E-Verify was unavailable because of the government shutdown should not count towards the federal contractor deadlines found in the Employment Eligibility Verification Federal Acquisition Regulation.

As always, federal contractors should contact their contracting officer for more information on their responsibilities, Oshinowo and Lopez recommend.

Employers and employees may contact E-Verify support by e-mail at [email protected] and by telephone at 888-464-4218. For Form I-9 questions, employers and employees may visit I-9 Central or send an e-mail to [email protected].

In addition, Oshinowo and Lopez advise that employers with questions or concerns about their E-Verify and Form I-9 obligations following the government shutdown should consult with experienced employment immigration counsel.

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