The government has been shut down for 29 days, with no signs go reopening anytime soon. Although USCIS has continued to operate due to being self-funded by application filing fees, E-Verify’s funding was discontinued by the shutdown, so the system has been inoperable since December 22, 2018. For many employers, using E-Verify as part of an immigration compliance scheme is voluntary, however for federal contractors and employers in several states, E-Verify is mandatory. In either case, losing the availability of this valuable double check on employee eligibility to work leaves an employer relying on the I-9 process. Below are a few reminders to get employers through the shutdown and to make sure they are ready when the E-Verify system is back up and running:
Make copies of employee documents used for I-9 completion: To be sure, copying an employee’s identity documents is not required for the I-9 process, however it has increasingly become considered as a best practice for employers, especially in our new age of 6000+ ICE I-9 audits per year. (But remember, for E-Verify employers, photo matching requires employers to make copies of green cards, work permits and U.S. passports when they are presented for verification purposes.) Keeping copies of documents with the I-9 form has several benefits in the shutdown context. At some point the government will reopen and the employee’s information will have to be inputted to the E-Verify system. Having copies of the employee’s documents will serve to ensure that the employer has the correct employee information, for submission and as a double check on the information entered on the I-9 form. Having copies will reduce the likelihood that the employer will have to go back to the employee for additional information once E-Verify is back up and running. Reducing the number of employee contacts during the I-9/E-Verify process reduces the opportunities for unwitting I-9 discrimination to occur, including document abuse and citizenship status discrimination.
Conduct careful review of all documents presented for I-9 purposes: Without the E-Verify check available, employers will be relying on their own judgment as to the validity and veracity of immigration-related documents presented during the shutdown. While it is not necessary for employers to be a fake document expert, it is required that they review the presented documents to make sure they appear valid and relate to the person who is presenting them. Immigration documents, such as work permits and green cards have changed over the years, so determining what is a valid document is not always as easy as it seems it should be. In the M-274 Handbook for Employers, there are many samples of what the various immigration documents look like as well as descriptions of their security features. Employers should use information in the handbook to compare to documents presented if they have questions.
Store shutdown period I-9s together: Best practice is to store I-9s separately from employee files in order to ensure that information on the I-9 forms remains private and is not inadvertently, or purposely used to make employment decisions. I recommend three I-9 files: (1) active employees with no reverification required (2) active employees with reverification required (3) terminated employees stored in order by termination date. I would add another temporary category of I-9s prepared during the shutdown. This will allow employers to easily identify those I-9s that will have to be entered into E-Verify once it is back up and running. After the shutdown is over, the I-9s can be folded back into the three standing files as described above.
With no signs of stopping, the shutdown maybe with us for a while. Taking extra care now with your I-9 forms will ease the burden of catching up on E-Verify entries, once the system is back up and running.