USCIS Guidance on E-Verify Issues Post Resolution of Federal Government Shutdown

On October 17, 2013, U.S. Citizenship and Immigration Services (USCIS) announced that E-Verify has resumed operations following resolution of the federal government shutdown.

During the shutdown, USCIS suspended the E-Verify “three-day rule” and allowed an extension of time period during which employees may resolve Tentative Nonconfirmations (TNCs) for cases affected by the shutdown, because employers were not able to access their E-Verify accounts and employees could not resolve TNCs.

Although the “three-day rule” for E-Verify cases was suspended for cases affected by the shutdown, this did NOT affect the Form I-9 requirement—employers were still required to complete the Form I-9 no later than the third business day after an employee starts work for pay.

USCIS has provided the following guidance to address potential compliance issues that resulted from the shutdown of the E-Verify website.

• If an employee had a TNC referred between September 17, 2013 and September 30, 2013 and was not able to resolve the TNC due to the shutdown, add 12 federal business days to the date printed on the “Referral Letter” or “Referral Date Confirmation.” Employees have until this new date to contact the Social Security Administration (SSA) or the Department of Homeland Security (DHS) to resolve their cases. If you have an employee who decided to contest his or her TNC while E-Verify was unavailable, you should now initiate the referral process in E-Verify. Employers may not take any adverse action against an employee because of the TNC.

• If an employee received a Final Nonconfirmation (FNC) or “No Show” because of the shutdown, please close the case and select “The employee continues to work for the employer after receiving a Final Nonconfirmation result,” or “The employee continues to work for the employer after receiving a No Show result.” The employer must then enter a new case in E-Verify for that employee. These steps are necessary to ensure the employee is afforded the opportunity to timely contest and resolve the TNC that led to the FNC result.

Creating Cases: Three-Day Rule Employers must create an E-Verify case for each employee hired during or otherwise affected by the shutdown by November 5, 2013. If you are prompted to provide a reason why the case is late (i.e., does not conform to the three-day rule), select ‘Other’ from the drop-down list of reasons and enter ‘federal government shutdown’ in the field.   Federal Contractor Deadlines If your organization missed a deadline because E-Verify was unavailable or if it has an upcoming deadline for complying with the federal contractor rule, please follow the instructions above and notify your contracting officer of these instructions.

Information For Employees If your TNC was referred between September 17, 2013 and September 30, 2013, and you were not able to resolve the mismatch due to the shutdown, you should:

• Add 12 federal business days to the date printed on the “Referral Letter” or “Referral Date Confirmation” that your employer provided you after you contested the TNC. Federal business days are Monday through Friday and do not include federal holidays.

• Contact SSA or DHS by the new date to resolve your TNC.

If you received a FNC because you could not contact DHS or SSA during the shutdown, or because you could not contact DHS or SSA in the first ten days after the government reopened, please contact your employer and request that the employer re-enter your query. For more information about contesting your TNC or FNC, please refer to the Employee section of the E-Verify website.

To obtain more information on the I-9 and E-verify processes, please contact our immigration group.