The federal E-Verify program provides a way for employers to confirm that people they are hiring are eligible to work in the United States.  Participation in E-Verify is discretionary for most employers, but mandatory for federal contractors and certain others, such as businesses in states requiring its use. California is not one of those states. An employer who opts to use the system must then use it for every new hire.

During the recent federal government shutdown, E-Verify was not accessible. However, businesses do not get a “pass” on compliance for hires made during that period. While of course no one could report during the shutdown, everyone is now expected to catch up now that it is over.

Thus, any affected company is required by Monday, February 11, 2019 to create an E-Verify case for each person hired during the shutdown, using the hire date on the employee’s I-9 form.  Each such case should be designated as “E-Verify Not Available” under “Other” in the drop-down menu.

If the information submitted by a participating employer for a new hire does not match government records, the response generated by the Department of Homeland Security (DHS) or Social Security Administration (SSA) is a “tentative non-confirmation” (TNC). The company then notifies the employee of the TNC. If the person informs the employer of a decision to contest the TNC, the company notifies SSA and provides that person a  “referral date confirmation” (RDC) with a deadline for him or her to communicate with either DHS or SSA to begin resolving the discrepancy.

For any TNCs that were pending but could not be addressed during the shutdown, E-Verify is giving affected employees who notify their employers by February 11 of their intent to contest the TNCs an extra 10 federal business days to do so. Instructions on an employer’s obligations to issue a revised RDC on receiving such notification are on the E-Verify website.

For those using E-Verify, the administrators warn of longer wait times because of backlogged traffic.

For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Helena Kobrin

February 8, 2019