Employment Law Supplemental Update
Nexsen Pruet Immigration Alert
October 23, 2013
After the federal government’s partial shutdown on October 1, 2013, employers were unable to access their E-Verify accounts. Now that funding has been restored and E-Verify services are back online, the Department of Homeland Security has issued guidance and instructions to employers.
Grace Period Until November 5
Employers must create an E-Verify case for each employee hired during the shutdown (October 1-17, 2013) no later than November 5, 2013. When prompted by the E-Verify system to explain why the case was initiated late (a violation of the three-day E-Verify rule), employers may select “other” from the drop-down list of reasons and enter into the text field “federal government shutdown.”
The three-day rule is back in effect for employees hired on or after October 17, 2013.
If a tentative nonconfirmation (TNC) was issued for an employee between September 17, 2013 and September 30, 2013, and it could not be resolved because of the shutdown, employers may notify any affected employee to add 12 federal business days to the date printed on the referral letter or referral date confirmation. Employees should contact the Social Security Administration or Department of Homeland Security to resolve their cases by the new date.
If any employee chose to contest the TNC during the shutdown, now is the time to initiate the referral process through E-Verify.
SSA Final Nonconfirmation or DHS No-Show Results
If an employee received an final nonconfirmation (FNC) or a No-Show because of the shutdown, employers have been instructed by E-Verify to close the case and select one of the following from the drop-down list: “The employee continues to work for the employer after receiving a Final Noncomfirmation (FNC) result”; or “The employee continues to work for the employer after receiving a No-Show result.” In these cases, the employer may immediately enter a new case in E-Verify for that employee. Historically this response has been viewed as an audit trigger by E-Verify Compliance and Monitoring, and has been seen as a possible ICE audit trigger, but E-Verify is indicating that this step is necessary to ensure the employee is afforded the opportunity to contest and resolve the TNC that led to the FNC result.
Federal Contractors and E-Verify
Federal contractors that could not enroll or use E-Verify can now do so in accordance with E-Verify’s instructions as summarized above. Contractors affected by the shutdown’s E-Verify unavailability should be in contact with the contracting officer to confirm the guidance received from E-Verify for complying with the federal contractor rules.
For more information about the application of the E-Verify guidance and instructions to specific cases, please contact us.