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Federal E-Verify program halted during government shutdown

Created in 1996 as a part of the Illegal Immigration Reform and Immigrant Responsibility Act, E-verify services allow thousands of employers to confirm a potential employee’s right to work in the United States, as required by federal law. Federal data shows more than 820,000 organizations have agreements for the software. E-Verify compares information from an employee's Form I-9 to DHS and Social Security Administration (SSA) records to confirm employment eligibility. Employers enrolled in the program are required to use the system to run checks on new workers within three days of hiring them.

The Department of Homeland Security, which oversees the program, announced that the website, www.e-verify.gov, will not be actively managed and will not be updated until after funding is restored. DHS reported: “Information on this website may not be up to date. Transactions submitted via this website might not be processed and we will not be able to respond to inquiries until after appropriations are enacted.”

Impact to Employers

Employers will not have the ability to check whether their prospective hires are eligible to work.

However, the shutdown does not affect an employer's responsibility to verify employment eligibility. Employers must still complete the Form I-9, no later than the third business day after an employee starts work for pay, and comply with all other Form I-9 requirements, according to DHS.

To minimize the burden on both employers and employees, DHS announced that:

  • The three-day rule for creating E-Verify cases is suspended for cases affected by the unavailability of the service.
  • The time period during which employees may resolve Tentative Nonconfirmations (TNCs) will be extended. The number of days E-Verify is not available will not count toward the days the employee has to begin the process of resolving their TNCs.
  • Additional guidance regarding the three-day rule and time period to resolve TNC deadlines will be provided once operations resume.

Employers can face severe penalties for not verifying work authorization. DHS has indicated employers will not be penalized for delays in creating E-Verify cases as a result of the shutdown. However, it is critical to continue to track all new hires and create cases when the system is once again available. Documenting the number of days the system was unavailable is also recommended, to explain the discrepancy between the date of the I-9 and the E-Verify query.

January 08, 2019