During the government shutdown, lasting from December 22, 2018 through January 25, 2019, employers were required to complete and retain Form I-9, Eligibility Employment Verification, for each individual hired during the shutdown, even though E-Verify services were unavailable. However, it was recently announced that E-Verify resumed operations on January 28, 2019 and participating employers have until February 11, 2019 to create an E-Verify case for all new hires during the government shutdown, using the hire date on the employee’s I-9. Employers should be prepared for longer than expected processing times due to the length of the government shutdown and the accumulation of cases now entering the E-Verify system.

In situations where the E-Verify case creation is more than three working days after the date of hire, USCIS instructs employers to select the “Other” option from the drop-down list and enter “E-Verify Not Available.” If the data entered does not match government records and a Tentative Nonconfirmation (TNC) results, any employer on notice of an employee’s intention to contest the TNC by February 11, 2019, must revise the date for employees to begin resolution of the TNC by adding ten federal business days to the date on the employee’s “Referral Date Confirmation” notice.  This only applies to TNC referrals impacted by the government shutdown.  TNC referrals after E-Verify resumed operations do not receive the additional ten days to contest.

Employers should pay close attention to the dates noted above to ensure compliance with E-Verify requirements. If you need assistance with E-Verify and other compliance-related issues, please contact us.

Natalie Tynan is a former DHS lawyer who focuses on immigration compliance and related issues.