With the likelihood of a government shutdown growing by the day, and in light of new I-9 flexibilities introduced by DHS on August 1, 2023, this alert examines how a partial government shutdown could impact employers’ onboarding processes, particularly in relation to the Employment Eligibility Verification (Form I-9) and the US Department of Homeland Security’s (DHS) E-Verify system.
In the event of a shutdown, employers must continue completing Form I-9 as required by law. However, historically, DHS’s E-Verify system has been unavailable during government shutdowns. Thus, while a shutdown would not impede the completion of Form I-9, employers may wonder how they will be able to comply with the requirements of DHS’s E-verify program should the E-Verify system become unavailable. They may also wonder how their inability to access E-Verify would affect their ability to use the I-9 flexibilities that DHS rolled out last month.
Employers can find comfort in knowing that, during prior shutdowns, DHS has made accommodations to help employers come into compliance with E-Verify once government operations resume. Unless a government funding bill is signed into law by midnight on September 30, we anticipate the government will make similar accommodations once Congress’s current impasse is resolved.
Employers must continue completing Form I-9 and will need to submit late E-Verify verification requests.
For context, E-Verify is the web-based system through which employers can electronically confirm the employment eligibility of their employees. In the E-Verify process, employers create cases by entering employee information into the E-Verify system, which then electronically compares that information to government records. Employers receive confirmation of an employee’s employment eligibility or an alert that the employee needs to take further action to complete the case.
Though the E-Verify and I-9 processes are closely intertwined, and often conflated, the E-Verify process is distinct from the completion of Form I-9, which is required for all new hires. Therefore, employers are reminded that in the event of a government shutdown, they must continue completing Form I-9 in compliance with the law, regardless of whether the E-Verify system is available.
However, if E-Verify becomes unavailable, DHS will not penalize employers for delays in entering information into that system. Instead, employers would need to enter this information into the system once normal government operations resume. Following prior shutdowns, DHS has issued guidance and made accommodations for affected processes, including the creation of new cases in E-Verify. Under this guidance, DHS has issued extensions of deadlines and announced alternative procedures to help employers and employees come into compliance following the shutdown. We expect the same to be true should the E-Verify system become unavailable on or after October 1.
Employers and employees will have more time to resolve Tentative Non-Confirmations.
Similarly, in the event of an E-Verify shutdown, employers who receive Tentative Non-Confirmations (TNCs) in E-Verify will be afforded additional time to resolve any underlying issues. By way of background, E-Verify requires all employers to take action to resolve TNCs for their employees within 10 federal government working days.
Without access to the E-Verify system during a government shutdown, employers may be unable to resolve or close TNCs within the 10-day time frame. Having said that, as explained above, we anticipate that DHS will issue guidance introducing flexibilities or alternative processes to address compliance issues created by the shutdown, including addressing TNCs in the E-Verify system.
E-Verify Employers can still use the Alternative Process announced on August 1, 2023, to verify I-9 documents.
As we explained in a prior alert on this issue, on August 1, 2023, DHS rolled out an “alternative procedure” that allows remote document review and verification for certain “qualified employers” that are enrolled in, and in good standing with, the DHS E-Verify system. Under the new policy, qualified employers are no longer required to perform in-person inspections of I-9 documents for new hires and may now use an “alternative procedure” to inspect documents remotely.
DHS has confirmed that qualified employers will have the ability to use the alternative procedure, even if they are unable to access the E-Verify system to create new cases due to a government shutdown. However, employers who are not enrolled in E-Verify by the time of the shutdown would not be able to register as new users in the system. In these cases, employers would need to continue performing in-person reviews of I-9 documentation.
It is worth noting that E-Verify is not used to complete I-9 “reverifications” for existing employees. Accordingly, a government shutdown should have no effect at all on the I-9 reverification process for existing workers.
Mintz will publish additional guidance on this topic when further details become available. In the meantime, if you have questions regarding the impact of the government shutdown, please contact your Mintz Immigration attorney.