October 25, 2013
Ana Maria Echiburu Tyrrell
Due to the government shutdown, E-Verify was not accessible from October 1, 2013 until October 17, 2013. During that time, E-Verify was nonfunctional, and employers could not create cases for new hires or resolve Non-confirmations. Now that E-Verify is functional again, employers may have questions related to cases that could not be created or resolved during the shutdown.
What if I hired someone during the shutdown but could not create a case on E-Verify within the required 3-day window?
Generally, an employer must complete a Form I-9 and then create an E-Verify case for each new hire within three days of placing that individual on payroll. The shutdown, however, made it impossible for employers to comply with this rule. To address this issue, U.S. Citizenship and Immigration Services (USCIS) has stated that employers should create an E-Verify case for all new employees by November 5, 2013. When prompted to indicate why the 3-day deadline was not met, the employer should select “Other”’ and reference “federal government shutdown” in the blank field.
What if I was not able to resolve a Tentative Non-confirmation due to the shutdown?
After an employer creates a case for an employee in E-Verify, it may receive a Tentative Non-confirmation (TNC) from either the Social Security Administration (SSA) or the Department of Homeland Security (DHS) if the information provided in E-Verify does not match SSA or DHS records. If the employer receives a TNC, it must notify the employee and refer the case in E-Verify so that the employee can contact the SSA or DHS to resolve the TNC. The employee then has 8 days to contact SSA or DHS to resolve the issue. After the employee contacts the SSA or DHS, E-Verify will provide the employer with a resolution to the case.
Due to the shutdown, employees were not able to contact SSA or DHS to resolve TNCs. USCIS has stated that for such cases referred to SSA or DHS between September 17, 2013 and September 30, 2013, employers should give employees 12 additional federal business days from the date printed on the “Referral Letter” or “Referral Date Confirmation” to contact the appropriate office. Federal business days are Monday through Friday, not including federal holidays. The date printed on the “Referral Letter” or “Referral Date Confirmation” is normally the date by which the employee must contact the SSA or DHS to resolve the TNC. Additionally, if an employee stated that he or she wanted to contest a TNC during the shutdown, the employer should now start the referral process in E-Verify.
What If I received an SSA Final Non-confirmation (FNC) or DHS No Show for an employee as a result of the shutdown?
If an employee does not visit the SSA or contact DHS within the requisite period after a TNC, E-Verify will provide the employer with an SSA Final Non-confirmation (FNC) or a DHS No Show. Due to the shutdown, however, employees have not been able to contact SSA or DHS to resolve the issue. Therefore, USCIS advises that those employers who received FNCs or DHS No Shows as a result of the shutdown should first close the case and select “The employee continues to work for the employer after receiving a Final Non-confirmation result,” or “The employee continues to work for the employer after receiving a No Show result.” The employer must then open a new case in E-Verify for each employee to allow the employee the opportunity to address the underlying TNC. Please note that USCIS advises employers to take this step even if the employee is not able to contact DHS or SSA within the first 10 days after the government reopened. Click here to see the USCIS bulletin regarding E-Verify after the shutdown.
If you have any questions about the Form I-9, E-Verify, or your company’s compliance policies, please contact Minsky, McCormick & Hallagan, P.C. Our lawyers have experience with a variety of Form I-9 compliance issues and can assist you with any questions or concerns you may have.