Help: I have hired a new employee but E-Verify is not working. What should I do?

Lida Bannink | Employment Law

E-Verify is an internet based system that will compare information from the Form I-9 to the U.S. Department of Homeland Security (DHS) and Social Security Administration (SSA) records to confirm whether an individual is authorized to work in the United States. While participation is generally voluntary, some employers are required to participate.

However, funding for the E-verify program ran out on December 22, 2018 when the government shut down. The DHS indicated, “E-verify and E-verify services are currently unavailable due to a lapse in government appropriations.” In short, the E-verify program does not work. While the program is down, 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; or run reports.

Despite this shut down, all employers remain subject to Form I-9 obligations. As a reminder, 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-p no later than the third business day after an employee begins work for pay.

To minimize the burden on both employers and employees, DHS announced that:

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 (tentative nonconfirmations) 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.

We 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

In addition to complying with the I-9 requirements, employers should keep track of all new hires with completed I-9’s for whom there are no E-Verify queries due to the shutdown. Once the system is running again, employers should make sure to enter their queries for new employees at that time.

Employers should watch closely for the resumption of the program to ensure that they are meeting applicable TNC deadlines. I also encourage employers to keep a memorandum that lists the dates that E-Verify was unavailable in the instance of a future audit.


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Lida Bannink is the lead employment law attorney at Eckberg Lammers. Lida represents businesses and management in labor, employment, and business law matters. She may be reached at 651-351-2116 or lbannink@eckberglammers.com.

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