With the federal government’s partial shutdown in its third day, many federal agency operations have been affected.  Among them, the Department of Homeland Security (DHS) has suspended its E-Verify service until Congress reaches an agreement to restore funding.  Importantly, although E-Verify is temporarily not operating, employers must still properly and timely complete Form I-9 for any new hires within three days pursuant to the 1986 Immigration Reform and Control Act (IRCA).  Employers should also prepare to process any backlog of new hires in E-Verify when the service resumes.

According to the Department’s E-Verify site, the shutdown will prevent employers from:

• Enrolling or Terminating enrollment in E-Verify
• Verifying the employment eligibility of any person
• Viewing or taking action on any case
• Adding, deleting or editing any User ID
• Resetting passwords
• Editing company information
• Running reports
• Viewing “Essential Resources” (although these resources are still available at http://www.dhs.gov/e-verify)

In addition, E-Verify Customer Support and related support and training services are closed, meaning that employees with Tentative Nonconfirmations (TNCs) cannot resolve them.  DHS has suspended its “three-day rule” for E-Verify cases affected by the shutdown, and the Department will provide additional guidance on processing new hire backlogs after operations resume.

Additionally, days during the shutdown will not count toward the eight workdays during which employees may resolve TNCs.  Employers may not take any adverse action against an employee because of an E-Verify interim case status, and that includes extended interim case statuses due to a federal government shutdown.  Federal contractors complying with E-Verify rules pursuant to a federal contract should contact the proper contracting officer to discuss the impact of any extended deadlines.

During the shutdown, employers who use E-Verify should maintain a list of new hires for processing as soon as E-Verify service resumes.  Employers must closely monitor the shutdown and any guidance DHS issues after restoring operations.  Employers should also notify any employees who are still resolving TNCs about the extra time granted by the Department.  We are happy to provide additional assistance to employers with questions about compliance with IRCA, completing Form I-9, using E-Verify, or dealing with ICE worksite enforcement actions during and after the government shutdown.