Over the past few days, I’ve received a large number of emails and calls from stressed out clients asking about the lack of access to E-Verify. Do not panic, employers will not be penalized as a result of the E-Verify operations shutdown.

E-Verify is the U.S. Citizenship and Immigration Service’s (USCIS) internet-based system that compares information from an employee’s Form I-9 to Department of Homeland Security (DHS) and Social Security Administration (SSA) records to confirm employment eligibility.

Since E-Verify is not fee based, the current lapse in appropriated government funding affects the program. Employers will not be penalized for any delays in creating E-Verify cases.  However, employers are reminded that they must continue to complete I-9s in compliance with the law, and when E-Verify becomes available, create cases in the E-Verify system. We expect USCIS to issue guidance—as they have during prior shutdowns— suspending the “three-day rule”  which mandates creating a query within three day of starting work for pay, for any case affected cases.  Historically, employees caught in the Tentative Nonconfirmation (TNC) process were also provided an extended period to resolve any issues; the same is expected this time.

During the government shutdown employers will not be able to enroll in the E-Verify, access and action cases, or edit accounts. Employers are reminded not to take any adverse action against an employee, even where a TNC case cannot be addressed. Employees should be allowed to begin or continue to work during this time, in spite of the E-Verify delays.

Remember that the government shut down has nothing to do with an employer’s responsibilities to complete the Form I-9 timely.  Specifically, employees are required to complete Section 1 of the I-9 on or before the first day of employment, and employers must complete Section 2 of the I-9 no later than the third business day after an employee begins work for pay.

E-Verify is considered a best practice, but companies considering enrolling should understand their responsibilities, as well as the related benefits,  prior to signing the Memorandum of Understanding with the government.

For more information and/or for E-Verify monitoring and training requests, please contact Dawn Lurie at dlurie@seyfarth.com.