1. What does E-Verify unavailability mean for employers?
While E-Verify is unavailable, employers will typically not be able to access their E-Verify accounts. Crucially, this means that employers will not be able to create E-Verify cases for employees hired during this period of unavailability. Employers will also not be able to enroll in E-Verify or take other action on their accounts (e.g., editing account information, resetting passwords or running reports).
Because E-Verify’s customer support function is also typically impacted during a shutdown, employees will not be able to resolve any E-Verify mismatches (i.e., Tentative Nonconfirmations (TNCs)) that were generated prior to the system becoming unavailable.
2. When should an employer create an E-Verify case for employees hired while E-Verify is unavailable?
In ordinary circumstances, employers must create an E-Verify case for new hires no later than three business days after the employee’s first day of work for pay. This is known as the “three-day-rule.” However, during past shutdowns (including the 2018 shutdown) the three-day-rule for creating E-Verify cases affected by the unavailability of E-Verify was suspended. In the absence of guidance from DHS following a shutdown, employers should create cases for affected employees as soon as possible once the system comes back online.
3. What should an employer do about E-Verify mismatches (TNCs) while E-Verify is unavailable?
DHS’s announcement regarding E-Verify’s unavailability on Oct. 1 (which has since been removed) stated that the time during which employees may resolve mismatches would be extended and that further guidance would be provided when the system became available. It also stated that the number of days that E-Verify is unavailable would not count against the number of days employers have to begin resolving their mismatches. This is consistent with how TNCs had been treated in prior shutdowns.
During any period of unavailability, employers must be careful not to take any adverse action against any employee because of a TNC while the E-Verify system is unavailable, including terminating, suspending or withholding training, hours or pay.
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 DHS.
4. What should an employer do about Form I-9 while E-Verify is unavailable?
Employers must continue to comply with all Form I-9 requirements during any period of E-Verify unavailability. This means that Section 1 of Form I-9 must still be completed by the employee on the first day of work for pay, and the employer must complete Section 2 of Form I-9 no later than the third business day following the employee’s first day of work for pay with the employer.
Employers who use E-Verify+ (assuming that platform is also unavailable) will need to complete paper versions of Form I-9 for any employees hired during this period of unavailability, or for employees who had E-Verify+ cases “Pending Employee Response” or “Ready for Review” at the time that the E-Verify+ unavailability began.
