E-Verify has resumed operations following the federal government shutdown. All E-Verify features and services are now available.

The following information addresses questions on how the federal government’s shutdown affected E-Verify and Form I-9.

Information For Employers

Form I-9

The Form I-9 requirements were not affected during the federal government shutdown. All employers must complete and retain a Form I-9 for every person hired to work for pay in the United States during the shutdown.

E-Verify

Employees who received a Tentative Nonconfirmation (TNC)

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 federal government 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 a TNC.

Employees who received a SSA Final Nonconfirmation (FNC) or DHS No Show result

If an employee received a Final Nonconfirmation (FNC) or No Show because of the federal government 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 Tentative Nonconfirmation (TNC) that led to the FNC result.

Creating Cases: Three-Day Rule

You 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

During the federal government shutdown, federal contractors could not enroll or use E-Verify as required by the federal contractor rule. 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 the federal government shutdown prevented you from contesting a Tentative Nonconfirmation (TNC), you will be allowed additional time to contact the Social Security Administration (SSA) or Department of Homeland Security (DHS). 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 federal government 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 Final Non-Confirmation (FNC) because you could not contact DHS or SSA during the federal government 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 Employee section of the E-Verify website.

Customer Support

E-Verify Customer Support expects an increase in requests for assistance. Due to this increase, customers may experience longer than normal delays and response times. We apologize for any inconvenience and appreciate your patience. For any questions or additional information about how the federal shutdown affects E-Verify, please email E-Verify@dhs.gov. For questions about Form I-9, please visit I-9 Central or email I-9Central@dhs.gov. Employers and employees may also contact E-Verify at 888-464-4218. Customer Support representatives are available Monday through Friday 8:00 am to 5:00 pm local time.

If you would like to become a client of our office or have any questions psertaining to this blog post, please give us a call.

The OSC announced today that they had reached an agreement with a janitorial and facilities management company in Florida that was fined for mishandling the TNC process with the employee.  The employer was fined $8800 (back pay and civil penalties) and had to agree to training by the Justice Department on the anti-discrimination provision and training by the Department of Homeland Security on proper E-Verify procedures.

It is imperative that you follow appropriate TNC procedures and supply your employees with the required documentation so that they can resolve TNC issues.  Sit down with them, show them the information that you input into E-Verify and make sure that it’s accurate.  Provide them with the appropriate  TNC notice and  SSA or DHS referral letter.  Here is an excellent training video that we recommend you use as a tool in your organization.

Check out our employer resource center here:  www.I-9Audits.com and our services and solutions here:  www-employer-compliance.com.   Stay informed and sign up to receive our information.

By:  Timothy Sutton, Communications Editor

In an effort to assist participating employers comply with the user requirements of E-Verify and to help improve participants’ overall use of the program, USCIS issued two self-assessment guides in June. Both guides are substantively similar, but are procedurally designed to assist two sets of users, either web-access or direct access users. Voluntary E-Verify participants will benefit from this recent assistance publication by following the eight-part checklist provided therein.

The self-assessment checklist covers, post-enrollment activities, creation of cases, photo matching, tentative nonconfirmation, DHS referral, SSA referral, final case resolution, and final case closure statements. USCIS touts E-Verify as an easy-to-use online tool, but warns, “Employers may be subject to legal action for some types of E-Verify misuse.” The self-assessment guide highlights below may surprise current E-Verify users who may unwittingly be noncompliant:

Monitored Activities Common Mistakes:

• Duplicate cases for same employee
• Verifying employees hired before 11/7/86
• Immediately terminating employee who receive a tentative nonconfirmation (TNC)
• Failing to create a case by the third day after employee started work for pay
• Creating cases for employees hired before E-Verify participant enrollment

Post-Enrollment Activities: Do web services comply with interface control agreements?

Creation of Cases: Is all personally identifiable information safeguarded at all times, with only minimal information retained?

Photo Matching: Are document photos matched to the photo on E-Verify rather than to the employee?

Tentative Nonconfirmation: Do case closure statements notify DHS if an employee who receives a TNC chooses not to contest is not terminated?

DHS & SSA Referral: Do E-Verify participants and employees both sign the English-language version of the referral letter?

Final Case Resolution: Upon receipt of a “DHS No Show” message, does the employee contact DHS within the required time?

Final Case Closure: Does the user file completed Form I-9 and all attachments in a secured location?

Although the self-assessment is a valuable tool to assist employers with E-Verify compliance, the checklists do not render a company audit proof. For assistance implementing best practices for E-Verify and other immigration related topics contact one of our immigration professionals.

Want to stay informed:?  Check out our I-9 Employer Resource Center and join our LinkedIn Group