The partial government shutdown is having one effect on employers that may lead some employers to think they have a free ride in the employment process. Nothing could be further from the truth. The shutdown has not affected every agency. According to the newsletter from the law firm Fisher Phillips “The U.S. Department of Labor (USDOL) and the National Labor Relations Board (NLRB), among others, are therefore fully staffed and have thus far remained operational during the shutdown” due to a minibus funding bill signed by President Trump in September of 2018. This fully funded these two agencies. Two other agencies did not get covered by this funding bill. These include the Equal Employment Opportunity Commission (EEOC) and the U.S. Citizenship and Immigration Services (USCIS). It is this last agency that is the subject of this post.
Still have to do the I-9
The USCIS has been affected by the shutdown by the fact that the E-Verify system is not currently working. That does not affect every employer, but many have come to rely on the system to verify whether or not a worker has the legal right to work in the United States. Here in my home state employers with 10 or more workers are required to use the E-Verify system to validate workers. What do you do if it is not working?
The fact that the E-Verify system is offline does not relieve employers of the responsibility of verifying a worker’s employment eligibility. It just means they have to go back to the way it was done in the past, by using the I-9 form. As the Fisher Phillips guidance says: “…it is important to remember that employers remain subject to Form I-9 Employment Eligibility Verification obligations during the pendency of the shutdown.”
The nature of the impact is:
Employers will not be able to access their E-Verify accounts to:
- Enroll in E-Verify;
- Create an E-Verify case;
- View or take action on any case;
- Add, delete, or edit any user account;
- Reset passwords;
- Edit company information;
- Terminate accounts; and
- Run reports;
- Resolve E-Verify Tentative Nonconfirmations (TNCs).
Just like 2013
We have dealt with this before, back in 2013 during that shutdown. The USCIS put rules in place at that time which have also been put in place this time. These include:
- The “three-day rule” for creating E-Verify cases is suspended for cases affected by the unavailability of E-Verify.
- The time period during which employees may resolve TNCs will be extended. The number of days E-Verify is not available will not count toward the days the employee has to begin the process of resolving their TNCs.
- USCIS will provide additional guidance regarding “three-day rule” and time period to resolve TNCs deadlines once operations resume.
- Employers may not take adverse action against an employee because the E-Verify case is in an interim case status, including while the employee’s case is in an extended interim case status due to the unavailability of E-Verify.
- Federal contractors with the Federal Acquisition Regulation (FAR) E-Verify clause should contact their contracting officer to inquire about extending federal contractor deadlines.
The major thing to remember is that when this shutdown ends, and it will, employers will still be held responsible for the hiring practices they engaged in during the shutdown. NO ONE should see this as an opportunity to ignore the regulations about employment verification.