On December 22, 2018, the federal government officially shut down following contention over the proposed border wall. However, while the shutdown may be rooted in immigration concerns, the shutdown’s impact on immigration services will be relatively limited. This is because most of the organizations involved in U.S. immigration are deemed “essential agencies,” so they will continue operating as normally as they can. Further, funding has already been appropriated for many other agencies relevant to immigration, so as long as the money is there, these organizations will also remain open.
Still, when the government shuts down, confusion ensues. For employers and their workers, here is what you need to know:
Are E-verify and the I-9 Form affected by the shutdown?
Almost all federal agencies responsible for immigration will remain fully operational during the shutdown. So, how is immigration being impacted by the government shutdown?
The brunt of the impact will fall on E-Verify, which is an essential tool for employers that need to verify work authorization. The I-9 Form process, though, is still required for authorizing new hires. Here is what the government shutdown means for the process:
- Form I-9 – Form I-9 remains mandatory under federal law, and new hires should still be required to fill out the form with their employer. It is important to note that even while the government shutdown is in effect, employers are still required to verify their employees.During a government shutdown, the I-9 Form process remains unchanged. That includes deadlines, so employers must still fill out the form within three days of hiring a new employee. New hires must also provide the proper identifying and work authorizing documents, adhering to the same timeline. Should the company’s I-9 Forms be audited at a later date, the auditing agency will expect any I-9 Forms filled out during a shutdown to be compliant in every way. That includes how the form is retained, so companies should not alter their I-9 Form processes, assuming they are already in compliance.
- E-Verify – The Department of Homeland Security’s E-Verify website will be unavailable during the government shutdown. This means that nearly all of the shutdown’s impact on immigration will be centered on the program.Because it will be taken offline until the shutdown is resolved, E-Verify cannot be used to verify an employee’s work authorization, even in states where it is a required step. Further, it is currently impossible to enroll in E-Verify or terminate an account, to create a case in E-Verify, to take any action on an ongoing case, to add or manage any user credentials, to run any reports or to resolve Tentative Non-confirmations, or TNCs. In other words, employers won’t be able to access any part of the website.As long as the government remains in shutdown mode, employers will be given leniency regarding E-Verify use. Specifically, the three-day deadline has been suspended, so employers are not required to begin an E-Verify case within three days of hiring an employee. Also, if there are any ongoing TNCs, they do not have to be resolved until the government is no longer shutdown. Employers have been cautioned not to take any action against an employee who has received a TNC, or an employee whose case has been stalled as a result of the shutdown. These cases should be addressed further once the shutdown has ended.
What is not affected by the government shutdown?
Multiple federal agencies are involved with immigration, and most of them will continue functioning as normal. Those agencies include:
- Customs and Border Protection (CBP) – As CBP is one of the aforementioned essential agencies, it will continue operating through the government shutdown. That means CBP will still provide inspections at the Mexican and Canadian borders and will also enforce U.S. laws at the borders.
- Immigration and Customs Enforcement (ICE) –ICE is another essential agency and will also remain open during the shutdown. As such, employers should not expect ICE-run audits and inspections to cease or slow down during this time.
- Student and Exchange Visitor Information System (SEVIS) – Another essential agency, SEVIS will also operate during the shutdown. It is essential that universities remain compliant with any regulations related to SEVIS, as it is considered important for national security.
- United States Citizenship and Immigration Services (USCIS) –USCIS is a critical organization for ensuring the smooth flow of people in and out of the country. Fortunately, USCIS is funded by application and petition fees, so it will remain funded through the shutdown.
- Department of State (DOS) –DOS is not an essential agency and funding has not been set aside for the organization. However, DOS expects U.S. embassies and consulates to process visa applications as normal, as long as visa filing fee reserves remain. DOS has also confirmed that passport services will still function normally, unless those services are provided in a federal building that has been shut down.
- Passport Offices – The Department of State says that the only passport offices affected by the government shutdown are those located within a federal building that has been closed due to the shutdown.
- Department of Labor (DOL) –Funding has already been appropriated for the DOL through the 2019 fiscal year. As such, it is unaffected by the shutdown, which means current wage determinations, PERM processing and labor certifications will not be halted.
Government shutdowns bring a lot of uncertainty to the private sector, but employers and their employees won’t have to change much as a result. While E-Verify is down, the I-9 Form process remains unaffected, and the agencies responsible for immigration law enforcement are still up and running. Employers, then, should consider it business as usual when it comes to authorizing workers.
The “Tentative Non-Confirmation” or TNC is the 2nd most common response users see from the E-Verify system following the “Authorized to Work” response. The reason this is a “tentative” non-confirmation is that the system sees some commonality between the employee’s information and a record in the system. However, there is not enough coinciding information to allow for a match and a definitive system response. It is extremely likely in these cases that a typo exists somewhere in the employee’s data.
A TNC is typically the result of a clerical error in Section 1 of Form I-9. It is important that you double or even triple check the employee’s personal information in these cases before you continue processing the E-Verify case. Often, a typo in the entered information will halt the confirmation. Here are a few common mistakes to look for:
- Last name/first name backwards
- Social Security number typed wrong
- Incorrect date of birth
These seem like very simple errors not to make, but that is exactly why they are made. Whether caused by rushing, complacency, or unfamiliarity with the computer system these mistakes are common; so look for them.
After making corrections, return to E-Verify and continue processing the case. This will update E-Verify with the corrected information and hopefully change the case status to authorized. But remember, typos and human error can occur on both sides of the system. If you’ve checked and rechecked the employee’s information and can’t find a mistake, it is possible that the error exists on the government’s side. If you determine that the information in Section 1 is accurate and that the government’s data was entered wrong the employee will need to “Contest” their case status.
The final case result would determine the procedure to follow to “contest” the findings. Simply follow the on-screen instructions and print the necessary documents.
We will cover some of these case results in more detail a future issues.
On September 11, 2012, DHS announced proposed changes to the E-Verify MOU in the Federal Register (77 FR 55858). The Federal Register notice provides a 60-day comment period ending November 13, 2012. There are 6 versions of the new proposed MOU depending upon how access to E-Verify is gained. Each of the proposed MOUs may be viewed via the eRulemaking Portal, simply scroll to the bottom of the docket screen.
The proposed MOU includes several changes. The most significant of these changes are outlined below.
Article V. Section F. PENALTIES
- The [Web Services Agent, Web Services Employer, etc.] agrees that any failure on its part to comply with the terms of the MOU may result in account suspension, termination, or other adverse action.
- DHS is not liable for any financial losses to [Agent/Employer] or any other party as a result of account suspension or termination.
Article VI. Section B. TERMINATION
2. …DHS may terminate this MOU…, with or without notice at any time if deemed necessary because of requirements of law or policy, or ….breach of system integrity…, or a failure on the party of either party to comply with established E-verify procedures and/or legal requirements…the employer understands that if it is in a state where E-Verify is mandatory, termination of this MOU by any party may negatively affect the Employer’s business.
For employers using E-Verify in an E-Verify required state, these changes may have business ending consequences. The MOU does not outline the level or frequency of non-compliance issues which would result in suspension or termination. Furthermore, the MOU does not outline any means by which an employer can redress the non-compliance issues in order to maintain the employer’s E-Verify participation. Likewise, the MOU does not provide any process by which an employer can appeal the decision of DHS with respect to suspension or termination of the employer’s E-Verify account.
Lookout Services encourages employers to consider the proposed changes and to submit comments on the proposed MOU. Comments may be submitted via email (email@example.com ), as well as, the eRulemaking Portal. The comment period ends November 13, 2012.
Recently, the Department of Homeland Security published The E-Verify Self-Assessment Guide for Direct Access Users (M-1044) or Web Services Users (M-1043). The Self-Assessment Guide is designed to assist participating employers in complying with the user requirements of E-Verify and to help improve participants’ overall use of the E-Verify program.
“Self-assessment demonstrates a company’s commitment to compliance by internally reviewing, detecting and preventing E-Verify misuse.” E-Verify Self-Assessment Guide, (M-1043 Rev. 06/2012), p. 1. Even employers who participate in E-Verify via a Designated Agent share the responsibility for their E-Verify program participation. The Self-Assessment Guide highlights many common mistakes such as:
- Creating duplicate cases for the same employee
- Verifying employees hired before November 7, 1986
- Immediately terminating employees who receive a Tentative Nonconfirmation
- Failure to submit a case by the third day of work for pay
- Submitting E-Verify cases for hires that pre-date E-Verify enrollment
See Id., p. 2. Insuring that employee rights are protected is one of USCIS’ top priorities. Participants are required to confirm that the Right to Work and E-Verify Participation posters are properly displayed. Participants are also repeatedly reminded to review E-Verify notices with the employee in private and to provide the notice in an alternative language if the employee requests it. (The notices are available in 17 alternative languages.) In addition, participants and users are instructed to take all appropriate measures to safeguard the employee’s personal data.
Furthermore, USCIS instructs employers to determine whether end users are following proper procedures. The Self-Assessment Guide continuously reminds employers of the importance of closing the E-Verify case. Employers are also instructed to confirm that notices are printed, signed, and maintained with the Form I-9 and periodically check to confirm that all cases are resolved.
Thus, Lookout Services strongly recommends that E-Verify participants use the Self-Assessment Guide to evaluate your implementation of the E-Verify program. Lookout Services’ customers are encouraged to use this in conjunction with the Lookout Services Companion to the Self-Assessment Guide found under the References section of our application.