Employment & Labor Insider

The Department of Homeland Security has announced that E-Verify has resumed normal operations although the government shutdown is continuing.

Employers should promptly resume normal verification procedures and take the following key steps to remain compliant. (The following comes from the DHS announcement, with edits.)

Step 1: Create cases for new hires by Tuesday, October 14
Employers must create an E-Verify case by Tuesday, October 14, for each employee hired while the system was unavailable. When creating the case, you should use the hire date listed on the employee’s Form I-9.

If prompted to explain the delay, select “Other” from the drop-down menu and type “E-Verify not available.” The period of system unavailability will not count toward the normal three-business-day requirement for opening an E-Verify case.

Employers should also confirm that all Form I-9s for employees hired during the shutdown were completed timely and correctly, because the I-9 process itself remained in effect even while E-Verify was offline. 

Step 2: Address tentative nonconfirmations (mismatches)
If an employee previously received a Tentative Nonconfirmation and chose to contest it, you are required to update that employee’s Referral Date Confirmation notice. The updated notice provides the new date by which the employee must contact the Social Security Administration or the Department of Homeland Security to begin resolving the mismatch.

You, as the employer, may do any of the following:
• Print a new notice with the revised deadline through the employee's E-Verify account (recommended).
• Log in to E-Verify and find the employee’s new referral date, and write the new date on the original notice.
• Add six federal business days to the original referral deadline.

Do not add extra days for cases referred on or after October 8.

For employees with mismatch cases
Employees who were unable to contact SSA or DHS during the shutdown now have extra time to do so, typically six additional federal business days, or the date reflected on a newly printed “Referral Date Confirmation.” As the employer, you should promptly reissue the updated notice and remind employees of the new date to contact SSA or DHS to keep their case active. Failure to follow up by the new deadline may result in an automatic final nonconfirmation.

For federal contractor employers
Federal contractors who are required to use E-Verify under the federal contractor rule will not be penalized for missed deadlines caused by the shutdown. The days E-Verify was unavailable do not count toward the normal deadlines to enroll in E-Verify or to verify employees assigned to a federal contract. Once E-Verify resumed operations, those compliance clocks began running again. If you are a contractor with active federal contracts, you should contact your contracting officer if you have questions about how this affects the timeline or reporting obligations. See link for additional information regarding timeframes for enrollment and use.

If you have questions about next steps or compliance obligations, you may contact any member of our Immigration Practice Group. Or, if you prefer, you can contact E-Verify directly at 888-464-4218 or by emailing e-verify@dhs.gov.