By: Bruce Buchanan, Sebelist Buchanan Law PLLC



In an interesting twist, the government shutdown (hereinafter Trump shutdown) over Trump’s most desired piece of immigration enforcement, the Wall, has caused E-Verify, an important tool in immigration enforcement, to expire.

The Department of Homeland Security (DHS) posted a notice on its website that due to the lapse in federal funding due to the shutdown, the E-Verify website will not be actively managed and will not be updated until funding resumes. It also stated "information on this website may not be up to date. Transactions submitted via this website might not be processed and we will not be able to respond to inquiries until after appropriations are enacted."

Thus, during the Trump shutdown, employees will not be able to resolve E-Verify Tentative Non-confirmations (TNCs). Also, employers will not be able to enroll in E-Verify; access their E-Verify accounts; create a case or take action on any case; or run reports. In addition, myE-Verify will be unavailable and employees will not be able to access their myE-Verify accounts.

Several E-Verify policies have been implemented to assist employers during this time:
  • “Three-day rule” for creating E-Verify cases is suspended for cases affected by the unavailability of E-Verify;
  • Time period during which employees may resolve TNCs will be extended;
  • Number of days E-Verify is not available will not count toward the days the employee has to begin the process of resolving their TNCs; and
  • Federal contractors with the FAR E-Verify clause should contact their contracting officer to inquire about extending federal contractor deadlines.
The Trump shutdown does not affect an employer's responsibility to verify employment eligibility. Employers must still complete the Form I-9 no later than the third business day after an employee starts work for pay and comply with all other Form I-9 requirements.

Employers are reminded they may not take adverse action against an employee because the E-Verify case is in an interim case status, including while the employee’s case is in an extended interim case status, due to the unavailability of E-Verify.

The USCIS continues to normally operate during the Trump shutdown as they are a fee-based agency. Immigration and Customs Enforcement continues to operate as they are deemed essential personnel. Most immigration courts are closed except for those handling detained individuals.

If you want to know more information on issues related to employer immigration compliance, I recommend you read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, and available at http://www.amazon.com/dp/0997083379.