Employers who use E-Verify to comply with their I-9 obligations have not had access to the system since December 22, 2018. Crucially, however, those I-9 obligations do not cease just because the E-Verify system is down. Thus, employers are advised to carefully examine new employees’ I-9 documents and complete I-9 sections 1 (by first day) and 2 (by third day) now, and then comply with the E-Verify 3-Day Rule as directed by the Division of Homeland Security (DHS) E-Verify website once it is back online.
Similarly, employees will need to resolve their tentative non-confirmations (TNCs) pursuant to DHS instructions on how the “eight federal government working days” rule will be extended because of the shutdown. Employers cannot take any adverse action against employees with pending TNCs, just as they cannot even when the E-Verify system is working.
Employers who use E-Verify should thus have a way to keep track of all new I-9s that need to be processed/queries created once the shutdown ends. The shutdown itself has generated so much news coverage that it should not be difficult for employers to know when the shutdown ends, so they can log on to the DHS website and look for instructions on how to proceed. A significant delay at that point would not be a surprise, but it is crucial for employers to have documented that the delay is the government’s, not theirs. In the past, “Government Shutdown” has been a specific dropdown choice when logging in after a shutdown ends. If anyone has a question on E-Verify or any labor or employment law issue, please contact Paul Keneally or Jennifer Shoemaker.