During the Ongoing Federal Government Shutdown, E-Verify is Down But I-9 Employment Verification Obligations
are Still in Effect
How Should Employers Comply?
As we enter the second week of the federal government’s shutdown – with no immediate end in sight – employers should carefully consider what has changed regarding E-Verify and I-9 compliance, and what has not.
Important Note – E-Verify compliance and completion of I-9 Forms are two distinct requirements, with E-Verify needed for only certain categories of employers while I-9 Forms are required for all employers.
What Has Happened Since the Shutdown?
Effective October 1, USCIS closed the E-Verify portal, not allowing the creation of any new cases, or additional documents being uploaded regarding pre-existing cases.
As noted above, for some employers, E-Verify is a voluntary service but for many employers, E Verify compliance is mandatory. Employers mandated to comply include –
- Federal contractors
- Employers operating in states that mandate E-Verify be used if thresholds are met, including Florida, Georgia, Utah, North Carolina and Tennessee
- An employer that has a court order requiring that it use E-Verify
To date, USCIS has provided no official guidance except that the current shutdown has suspended the obligation that required employers create an E-Verify case for a new employee no later than three business days after the employee’s first day of work for pay – often called the “three-day rule.”
E-Verify and I-9 Best Practices for Employers During the Shutdown I-9 Forms Must Be Completed as Usual
A completed I-9 does not become optional because E-Verify is unavailable. Employers must continue to timely complete I-9s for new employees. Once E-Verify “re-opens”, those employers required to do so will need to retroactively submit any new cases which occurred during the shutdown.
Employers still should –
- Ensure new employees complete Section 1 of the I-9 Form on or before their first day of work; and
- Complete Section 2 of the same I-9 Form within three business days of the employee’s start date.
E-Verify Mismatches (Tentative Non-Confirmations)
Employees are also unable to resolve any E-Verify mismatches that E-Verify generated prior to the system shutdown. Unofficial guidance provided stated that, when the system becomes available, the number of days that E-Verify was unavailable would not count against the number of days employers and employees have to begin resolving their mismatches.
- While E-Verify is down, employers should take no adverse action against any employee because of an E-Verify mismatch, including terminating, suspending, or withholding training, hours or pay.
For Federal Contractors – One More Recommendation
The Federal Acquisition Regulation (FAR) requires contractors to use E-Verify as a contract condition, but deadlines will pass during the shutdown. Federal contractors with a FAR clause should contact their contracting officer, if necessary, to inquire about extending any contractual deadlines, in the absence of any guidance from USCIS.
If you have any questions regarding E-Verify or your I-9 obligations, simply reply to this email or reach out to the Silberman Law attorney with whom you work.
