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E-Verify Shutdown Means Return to Paper I-9s; H1-Bs Halted

by Oct 8, 2013, 3:29 pm ET

logo-everifyHiring has all but stopped in parts of the U.S., casualties of the federal government shutdown.

When the feds went dark last week, the E-Verify system went offline. Although the feds have waived the rule that employment verification inquiries have to be submitted within three days of hire, some employers have put hiring on hold rather than risk running afoul of immigration rules.

Jerry Howard, chief executive officer of the National Association of Home Builders, told Bloomberg News that builders won’t hire help as long as the system is down.

In Arizona, one of the states where employers are required to be verified by the electronic E-Verify system, employment lawyers report getting dozens of calls asking what to do about new and pending hires.

“You can still hire,” labor lawyer Julie Pace told the Arizona Republic. “You just have to complete the I-9 form.”

That’s the same advice the U.S. Citizenship and Immigration Services, which runs E-Verify, posted on its website as the shutdown began October 1. However, the USCIS specifically warns, “This does NOT affect the Form I-9 requirement — employers must still complete the Form I-9 no later than the third business day after an employee starts work for pay.”

As the electronic version of the I-9 may not be accessible, employers are being told to use the paper forms and set them aside until the E-Verify system is operational. Attorneys with the international law firm Greenberg Traurig LLP counsel employers that processing the paper I-9 must follow the same procedures as the electronic version, and they may need to later transfer the paper copy information to the electronic system.

Federal contractors, who are among those required by law to use E-Verify to check the legal status of potential hires, have it more complicated. They are directed by the USCIS site to contact their “contracting officer to inquire about extending deadlines.” The only problem is that person may be among those furloughed.

Employers are forbidden to take adverse action against any employee during the shutdown, including where an employee is the subject of a Tentative Nonconfirmation.

The shutdown is also affecting the hiring of foreign nationals. New green card applications and sponsorships through the Department of Labor’s foreign labor certification application (PERM) are on hold. Likewise, the Office of Foreign Labor Certification is not processing Labor Condition Applications. These LCAs have to be submitted in connection with new or extended H-1B status petitions for employees before the U.S. Citizenship and Immigration Services will act.

Consequently no new HI-B hiring can occur, and employees nearing their H1-B expiration may be forced to leave the country.

This article is provided for informational purposes only and is not intended to offer specific legal advice. You should consult your legal counsel regarding any threatened or pending litigation.

  • Keith Halperin

    Thanks, John. “Your taxes (not) at work.”

    -kh