Blog updated January 7 with USCIS clarifications found below.
As employers across the country started 2021 with optimism for a better year, E-Verify was stuck in 2020, experiencing a short period of technical trouble. The site was down unexpectedly from Monday, January 5 at 1:53 PM EST until Tuesday, January 6 at 8:06 PM EST. Both the Web Services and Direct Access portals were affected.
Background on the Program
E-Verify was first authorized by Congress in 1996, allowing employers to electronically confirm their employees’ employment eligibility to work in the United States. E-Verify employers verify the identity and employment eligibility of newly hired employees by electronically matching the information provided by employees on the Form I-9, Employment Eligibility Verification, against records available to the Social Security Administration (SSA) and the Department of Homeland Security (DHS).
Unless mandated by a federal contract (or subcontract) containing the Federal Acquisition Regulation (FAR) E-Verify clause, required by a state or local regulation, required by a settlement, agreement, or contract, E-Verify remains a voluntary program. The system is considered a best practice and has improved exponentially in the past ten (10) years. In 2010, then USCIS Director, Ali Mayorkas, focused on transformation efforts, including enhancing E-Verify’s accuracy and integrity. Unfortunately, E-Verify is still challenged by identity fraud, but the USCIS continues to strengthen its efforts in this area.
What about Case Delays in Light of the Outage?
In light of the technical issues, USCIS announced the following New Temporary Policies “to minimize the burden on both employers and employees”:
- The “three-day rule” is suspended for E-Verify cases affected by the unavailability of E-Verify. USCIS will provide additional guidance regarding this deadline once the E-Verify system is fully operational. This does not affect Form I-9, Employment Eligibility Verification, requirements. Employers must still complete 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.
- The time period during which employees may resolve TNCs will be extended. The number of days E-Verify is not available will not count toward the days employees have to begin resolving their TNCs. USCIS will provide additional guidance regarding these deadlines once E-Verify is fully operational.
- For federal contractors covered by the E-Verify federal contractor rule, employers are instructed to contact their contracting officer, as necessary, to inquire about extending federal contractor deadlines.
- Employers may not take any 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.
- Employers should also refer to ICE guidance on COVID-19 and ICE news releases for the latest information on Form I-9, Employment Verification policies.
Midday January 7th, USCIS clarified that “participating employers must create an E-Verify case by January 11, 2021 for each employee hired while E-Verify was temporarily unavailable from January 4 to January 5, 2021. You must use the hire date from the employee’s Form I-9 when creating the E-Verify case. For these employees, if you do not create an E-Verify case by the third business day after the employee begins work for pay, select “Technical Problems” from the drop-down list as the specific reason. The days beginning January 4, 2021 through January 8, 2021 will not count toward the three business days employers have to create a case in E-Verify.”
For questions regarding E-Verify, including FAR responsibilities, monitoring, and compliance issues, contact the Seyfarth Immigration Compliance and Enforcement group, or the author, Dawn Lurie, directly at firstname.lastname@example.org.