AUTHORS: Amy Peck and Michael Neifach.
With the upcoming potential lapse in funding of the Department of Homeland Security, employers may encounter worksite compliance issues because the E-Verify program may be unavailable at the end of the day on February 27th. Should this happen, employers will not be able to create E-Verify cases to determine the eligibility of their employees to work in the United States. Nevertheless, employers continue to have compliance obligations during a government shutdown. Based on guidance from USCIS during the last government shutdown, in 2013, it is likely employers will need to follow these protocols should E-Verify be offline:
- Form I-9 requirements are not affected during a federal government shutdown.
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.
- Employees who received a Tentative Non-Confirmation (TNC)
If an employee had a TNC and was not able to resolve the TNC due to a federal government shutdown, employers should add the length of the government shutdown (X federal business days) to the date printed on the “Referral Letter” or “Referral Date Confirmation.” Employees have until this new date to contact the Social Security Administration (SSA) or DHS to resolve their cases. If you have an employee who decided to contest his or her TNC while E-Verify is unavailable, you should initiate the referral process in E-Verify. Employers may not take any adverse action against an employee because of a TNC.
- Employees who received a SSA Final Non-Confirmation (FNC) or DHS No Show result
If an employee received a Final FNC or No Show because of the federal government shutdown, close the case and select “The employee continues to work for the employer after receiving a Final Nonconfirmation result,” or “The employee continues to work for the employer after receiving a No Show result.” The employer must then enter a new case in E-Verify for that employee. These steps are necessary to ensure the employee is afforded the opportunity to timely contest and resolve the TNC that led to the FNC result.
- Creating Cases: Three-Day Rule
You must create an E-Verify case for each employee hired during or otherwise affected by the shutdown when E-Verify becomes functional again. If you are prompted to provide a reason why the case is late (i.e., does not conform to the three-day rule), select “Other” from the drop-down list of reasons and enter “DHS shutdown” in the field.
For further information please contact Amy Peck, Michael Neifach or the Jackson Lewis attorney with whom you normally work.