News

Published 1.10.2019

E-Verify, the web-based system that prevents employers from hiring unauthorized workers, has been unavailable since December 22, 2018, when the U.S. Government went into a partial shutdown due to a lapse in funding. Until the government passes legislation to reopen its operations and approve a new budget, E-Verify will remain inactive.

How does the E-Verify shutdown affect employers?
During a government shutdown affecting E-Verify, employers cannot enroll in E-Verify. In addition, employers who are already enrolled cannot access their E-Verify accounts to do any of the following:

Create an E-Verify case View or take action on any case Add, delete or edit any user account Reset passwords Edit company information Terminate accounts Run reports

How does the E-Verify shutdown affect employees?
Employees who received a Tentative Nonconfirmation (TNC) are not able to resolve those issues while the E-Verify system remains unavailable. In addition, the myE-verify system is also unavailable and employees cannot access their accounts to use any of the following functions:

Self Check Self Lock Case History Case Tracker

Are employers or employees in violation if they cannot complete the E-Verify process?
Given that E-Verify is unavailable due to no fault:

The three-day rule for creating E-Verify cases for new hires is suspended while E-Verify is unavailable because of the shutdown, if the employee was hired less than three days prior to the shutdown. If the employee was hired more than three days prior and E-Verify should have already been completed prior to the shutdown, employers may already be in violation, unless they can avail themselves of the standard delays or defenses allowed under the law.
The time period during which employees must initiate the process to resolve TNCs is extended. The period during which E-Verify is not available does not count toward the number of days the employee has to begin the process of resolving their TNCs.

Can employers terminate employees who are unable to resolve TNCs due to the shutdown?
No. Employers may not terminate or take any adverse action against an employee who received a TNC because the E-Verify system shows an interim case due to being unavailable because of the government shutdown.

How long will E-Verify remain unavailable?
There is no definite amount of days and no specific deadline for E-Verify to reopen. Employers should monitor the E-Verify website for periodic updates.

How can employers verify an employee’s work authorization in the meantime?
Employers must continue to use the I-9 Employment Eligibility Verification for all new hires and, if applicable, for re-hires and reverifications. The I-9 process is mandatory for all employers, regardless of whether they are enrolled in E-Verify or not. While the government shutdown may provide employers a defense to not completing the E-Verify process, the shutdown does not excuse failure to timely complete Form I-9. Employees must fill out Section 1 of Form I-9 no later than the first day of employment, and employers must complete Section 2 no later than the third day. In addition, the government shutdown does not provide a defense for general Form I-9 compliance issues.

What is E-Verify?
E-Verify is a federal web system that allows employers to verify their new hires’ employment eligibility in the U.S. The system checks the identity and employment eligibility of new hires against information available in the Social Security Administration (SSA) and Department of Homeland Security (DHS) database. In some states, such as Wisconsin, E-Verify also checks the employees’ identities against the driver records available through the state Department of Motor Vehicles (DMV).

Is E-Verify Mandatory?
Sometimes. Under federal law, E-Verify is generally voluntary for most cases. An exception under federal law applies for federal contractors, who are required to enroll in E-Verify. Another exception under federal law applies to private employers who employ foreign graduates working under the STEM OPT program.

Some states have adopted state law or local ordinances that make E-Verify or other similar systems mandatory for some employers, even if not otherwise required under federal law. The state and local requirements vary greatly from state to state, so employers must check the rules where their business operates. There are still more than a third of states, including Wisconsin, who have not yet adopted any state legislation, so the federal rules apply (generally voluntary unless otherwise specified).

We will continue to monitor the status of the E-Verify system and will provide updates as needed. If you have any questions about E-Verify, the I-9 Employment Eligibility Verification process or other immigration-related issues, do not hesitate to contact Raluca (Luca) Vais-Ottosen at (608) 252-9291 or rvo@dewittllp.com.