Federal Employment Law Update – January 2019January 28, 2019
Are You Prepared for the Polar Vortex?January 28, 2019
Now that the partial government shutdown has ended, E-Verify operations have resumed. Employers understandably have questions on how to proceed for cases that could not be entered or updated while E-Verify was unavailable. U.S. Citizenship and Immigration Services (USCIS) has posted an update online, including instructions for next steps.
Employers that participate in E-Verify must create a case by February 11, 2019 for all employees that were hired while E-Verify was not available. Employers should have continued to used Form I-9 to verify employment eligibility during that time.
Affected employers should also note:
- The date of hire recorded on Form I-9 is the date that employers will need to use when creating an E-Verify case.
- If the case creation date is more than three days from the date the employee started working for pay, instructions are to:
- Select “Other” from the drop down list; and
- Enter “E-Verify Not Available” as the reason.
- If an employee received a “Tentative Nonconfirmation” (TNC) and notified the company of his or her intent to contest it by February 11, 2019, the employer must revise the date that the employee must contact the Social Security Administration or Department of Homeland Security to begin resolving the TNC. To do this, add 10 federal business days to the date on the employee’s “Referral Date Confirmation” notice. Of note, federal business days are Monday through Friday and do not include federal holidays. Give the revised notice to your employee.
- For previous TNC cases, employers may reprint a copy of their employee’s “Referral Date Confirmation” by logging in to E-Verify, selecting the employee’s case, and selecting the “Print Confirmation” button. In addition:
- Employers must cross out the old date and insert the new date.
- Employees have until this new date to contact the Social Security Administration (SSA) or the Department of Homeland Security (DHS) to resolve their cases, as applicable.
- For new TNC cases that were referred after E-Verify resumed operations, employers should not add days to the time the employee has to contact either the SSA or DHS.
- If an employee decided to contest a TNC when E-Verify was unavailable, employers should now refer the employee’s case and follow the TNC process.
- During the DHS lapse in appropriations, E-Verify was not available for federal contractor enrollment or use. As a result, DHS guidance is 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. Contact the company’s contracting officer for more information on federal contractor responsibilities.
While all E-Verify features and services are now available, employers may experience extended processing times as the agency works through a large backlog. Employers may:
- Receive a response that the agency is working on the employer’s submission.
- Experience longer than normal delays and response times.
For questions or additional information about the unavailability of E-Verify, email [email protected] For questions about Form I-9, visit I-9 Central or email [email protected] Employers and employees may also contact E-Verify at 888-464-4218 Monday through Friday from 8 a.m. to 8 p.m. (Eastern).