Seyfarth Synopsis: The government has temporarily been reopened and E-Verify is back in business, at least until February 15th. The President and Congress have until that time to provide long term funding for the Department of Homeland Security (DHS). Our friends over at the Verification Division of U.S. Citizenship and Immigration Services (“USCIS”) have been very busy preparing for the onslaught of E-Verify activity that began early this morning, after the very long 35-day government shutdown. USCIS issued E-Verify guidance yesterday, January 28, 2019, outlining what employers need to do and when they need to do it. We expect additional guidance to be posted today in an effort to clarify some of the confusion caused by the government’s initial directives.

With all of those E-Verify queries sitting in cyberspace or on your desk, let’s start with the basics. Be warned – if you sleep easily at night without thoughts of E-Verify invading your dreams, this blog post is likely not for you.

Hopefully, during the 35 day shutdown you were able to follow the advice provided in Seyfarth’s previous blog Government Shutdown = E-Verify Shutdown. If so, your company has been stockpiling E-Verify queries while completing and retaining Forms I-9 in the requisite time frames. For those companies using electronic I-9 providers, your vendor should have been doing the same through their systems. Your vendor should also now be providing guidance on how to process those E-Verify queries queued up in their system, and should also be addressing the likely delays, backlogs and TNC related issues.

Initial Submission Timing

Whether your I-9 process is paper based (with direct access to the E-Verify system) or electronic based (and participate in E-Verify via a vendor), you must create new E-Verify cases by February 11, 2019. This means that for each employee hired during the government shut down, you now have approximately two weeks to clean up and catch up. Current guidance, on the USCIS website, states that you have to enter the employee’s information, including the employee’s date of hire from the Form I-9, into E-Verify and then enter “other” from the dropdown list and write “E-Verify not Available” when asked about the specific reason the case is being created late (more than three days after hire). We expect that this will be updated today and USCIS will allow employers to skip this step. Thank you USCIS.

TNC Timing Complications

Any TNC[1] that you and/or your employee did not resolve due to the shutdown now needs to be addressed. USCIS posted the following on their website:

If your employee received a TNC and notified you of his or her intention to contest it by February 11, 2019, you must revise the date by which your employee must contact the Social Security Administration (SSA) or DHS to begin resolving the TNC. To do this, add 10 federal business days to the date on your employee’s “Referral Date Confirmation” notice. Federal business days are Monday through Friday and do not include federal holidays. Give the revised notice to your employee.

You may reprint a copy of your employee’s “Referral Date Confirmation” by logging in to E-Verify, selecting your employee’s case and selecting the “Print Confirmation” button. Be sure to cross out the old date and insert the new date. Employees have until this new date to contact the SSA or DHS to resolve their cases, as applicable.

For TNC cases that were referred after E-Verify resumed operations, do not add days to the time your employee has to contact either SSA or DHS. If your employee decided to contest the TNC when E-Verify was unavailable, you should now refer the employee’s case and follow the TNC process.

This is where things become tricky. In particular, the initial USCIS directive relating to employees that received a TNC prior to the shutdown, who had “contested”, but had been unable to visit the Social Security Administration or reach DHS, seem flawed.

I contacted USCIS seeking clarification and provided the following scenarios:

Jane Smith received a TNC on 12/21/2018. If the employer now adds 10 days from the date on the Referral Date Confirmation, that would still place the employees deadline to take action[2] within the shutdown period on 01/04/2018, and this date has already passed.

USCIS Verification management immediately understood the conundrum and assured me that the guidance would be updated to reflect the following: TNC’s that were referred between December 10 to December 21 will be extended 10 days from January 28 to provide the employee the proper timeframe to take action. This means the employee now has until February 11 to contact SSA or DHS to resolve their case. We expect to see an update on the USCIS website shortly asking employers to revise the Notice, with the February 11, 2019 and provide it to the affected employee. The USCIS will also remind employers to Refer employees now who decided to contest when E-Verify was unavailable.

I applaud USCIS for their willingness to pivot and rush a clarification through the complicated legal and policy channels all taxed by the shutdown. In a perfect world, the TNC clock would be pushed out further and not start on January 28, as contacting employees and providing updated notices will not happen overnight. As it stands now – the date remains firm.

Our USCIS contacts were also well aware that the instructions to “cross out” a date by hand were inefficient and impractical. I am hopeful they are working some back office technology magic to automatically change the dates to adjust. My fingers are crossed for a simpler solution, being rolled out simultaneously with the updated TNC guidance.

Electronic I-9 Vendors and Web Services Clients

E-Verify has confirmed that all features and services, including TNC resolution, will be available, but cautioned employers to be patient and to expect “longer-than-usual processing times as we work through a large volume of accumulated cases. You may receive a response that we are working on your submission.” It will be interesting to see how the electronic I-9 vendors deal with the updated referral dates on the letters, as well as the delays, especially for employers with hundreds, if not thousands, of unprocessed queries. Employers are encouraged to keep in touch with their I-9 vendors as it is critical to timely address this extraordinary situation.

Federal Contractors

USCIS acknowledged that during the shutdown Federal contractors could not enroll or otherwise use the system. DHS guidance states “that any calendar day during which E-Verify was unavailable due to the lapse in appropriations should not count towards the federal contractor deadlines found in the Employment Eligibility Verification Federal Acquisition Regulation.” This statement should ensure that federal contractors are not penalized in any way for the E-Verify unavailability. However, companies are encouraged to check in with their contracting officers for clarity.

What’s Next?

Practically speaking employers should account for all open E-Verify queries, and also identify those employees who have not yet been run through the system. Employers should basically assess and fulfill all related obligations ASAP, as I expect the next two weeks will fly by quickly. In light of the lengthy delay, I suggest contacting all employees with open TNCs and reissuing Referral notices with the new February 11 date. While this may translate into more manpower being dedicated upfront to this effort, I promise it will save both you and your employees time and energy, should they forget to contact SSA and/or DHS timely. Finally, it’s a good time to review your standard E-Verify reports.

This blog will be updated as soon as USCIS publishes clarifying guidance. With another possible shutdown looming, it’s critical that the agency gets this right. I am confident the E-Verify system will survive the aftermath of the shutdown, and further improve, based on lessons learned from this experience.