Best Practices for Managing I-9 and E-Verify During a Federal Government Shutdown

Amid the threat of a looming government shutdown, employers and HR departments across the U.S. may be wondering how this impacts their hiring processes—particularly those who utilize the federally-funded E-Verify system to confirm their new hires’ work eligibility.  

While the probability and duration of a shutdown remains uncertain, the general framework of how the United States Citizenship and Immigration Services (USCIS) will likely respond is familiar territory based on recent shutdowns during the past decade. 

HR professionals may remember the last federal government shutdown (from late 2018 to early 2019), when the E-Verify system remained offline for 34 days, leading to a huge backlog of new- hire cases and pending resolutions, which had to be addressed when the government eventually resumed operations. 

For those of you who weren’t involved with I-9s and E-Verify back then (or may simply need a refresher), we’re providing some FAQs and best practices on how to manage your I-9 and E-Verify cases during a potential government shutdown in 2023. It is important to note that the USCIS may change these instructions (or provide further clarity) in the coming days. 

1. How will E-Verify be affected by a government shutdown?

In years past, the E-Verify system became totally unavailable. This meant that employers (and E-Verify employer agents) were unable to enroll in E-Verify, verify employment eligibility, view or take action on any cases, terminate an account, or perform other administrative actions. 

In addition, E-Verify customer support and related services were also impacted. This meant that employees were unable to resolve mismatches (aka Tentative Nonconfirmations or TNCs), USCIS telephone and email support was unavailable, E-Verify-led webinars and training sessions were canceled, and the myE-Verify service (including Self Check and Self Lock) for individuals was taken offline. 

2. How do I manage my I-9 and E-Verify obligations for new hires during the shutdown?

The first and most important thing to remember is that you must still complete the Form I-9 for all new hires, regardless of whether or not the E-Verify system is online, offline, or just taking a temporary break. As we often discuss, E-Verify is never a replacement for the Form I-9 process and so the federal government shutdown should have absolutely no impact on your regular and routine I-9 obligations.

Once the Form I-9 is completed, however, employers may be unable to create a case in the E-Verify system within three business days after the employee starts work for pay (as is required by the E-Verify system). In the past, the USCIS has suspended this so-called 'three-day rule' for E-Verify cases affected by the shutdown, but employers will need to eventually submit these I-9s to E-Verify once the system comes back online.

In 2019, the USCIS provided employers with a limited amount of time to enter/create all of these cases, so employers will want to make sure to keep track of all new hires during the shutdown and maintain easy access to the I-9 files (as well as copies of required supporting documents for photo matching). Employers using the electronic I-9 systems from Equifax can benefit from automatic queuing and submitting of the E-Verify cases – helping save a significant amount of time and worry.   

3. How do I manage pending TNCs that I received prior to the government shutdown?

In the past, the USCIS has announced that if the federal government shutdown prevents your employee from contesting a TNC, he or she will be allowed additional time to contact the Social Security Administration (SSA) or Department of Homeland Security (DHS) once the system resumes. As with new hire cases, employers should carefully track any pending TNCs once a shutdown has been confirmed. 

Employers should also remember that they are prohibited from taking any adverse action towards employees with TNCs while the E-Verify system is unavailable, including terminating, suspending, or withholding training, hours, or pay. 

4. How will the government shutdown affect federal contractors or subcontractors with looming E-Verify deadlines? 

During past shutdowns, federal contractors and subcontractors were unable to enroll or use E-Verify as required by the FAR (federal acquisition regulation) federal contractor rule. If your organization misses a deadline because E-Verify is unavailable or if it has an upcoming deadline for complying with the federal contractor rule, USCIS will instruct you to complete your cases (following the same guidelines mentioned above) and to notify your contracting officer.

5. Will the government shutdown affect employers who want to use the new “alternative procedure” for virtually examining documents?

As many in HR are keenly aware, the USCIS recently introduced a new “virtual” option for examining I-9 documents remotely that is predicated upon the employer enrolling in and using the E-Verify system at participating hiring sites. As part of this requirement, employers must follow all E‑Verify policies and procedures for their E‑Verify account to remain in “good standing” and also fulfill other requirements as well. 

While there has been no public comment on this, USCIS has informally indicated that qualifying employers may use the new virtual process for examining documents remotely, even if the E-Verify system is temporarily unavailable. These employers remain eligible, since under the program rules, they will need to eventually submit the I-9 to E-Verify once access resumes. 

However, this allowance will likely not extend to employers who haven’t yet enrolled in the E-Verify system, since these organizations would be unable to later E-Verify employees that were hired prior to enrollment.

Join us in our upcoming webinar, Fall Forecast: Navigating I-9 and E-Verify for the New Fiscal Year, as we will cover important developments in Form I-9 and E-Verify that are crucial for organizations to stay informed about and prepared for, including how a potential government shutdown could impact Form I-9 and E-Verify. Can’t join us? Register anyway and we’ll send you a link to an on-demand recording of the event.

 

That’s all for now. Stay tuned for more updates on the E-Verify system (and related shutdown news) by following this blog. And in the meantime, if you have any questions about managing E-Verify during a potential government shutdown or would like more information on our integrated I-9 and E-Verify software solutions, please visit I-9 HQ™.

The information provided is intended as general guidance and is not intended to convey any tax, benefits, or legal advice. For information pertaining to your company and its specific facts and needs, please consult your own tax advisor or legal counsel.  Equifax Workforce Solutions provides services that can help employers reduce their compliance risks. Details on our provision of these services and related support will be contained in your services agreement. Links to sources may be to third party sites. We have no control over and assume no responsibility for the content, privacy policies or practices of any third party sites or services.