The partial shutdown of the U.S. government is frustrating small business owners, especially those who contract with the federal government, rely on “non-essential” government employees, or want a new loan backed by the Small Business Administration.
Here’s another wrinkle: E-Verify, the federal government’s electronic system for checking whether new hires can legally work in the U.S., has been suspended, along with scores of other government functions deemed nonessential. That presents a prickly question for employers enrolled in E-Verify, because they must use the system to run checks on new workers within three days of hiring them. With the government shut down, would they have to stop hiring, as some have surmised?
The answer is no, according to a notice posted on the website for U.S. Citizenship and Immigration Services. Employers must still file I-9 forms for new workers, but the “three-day rule” for running E-Verify is suspended. Employers should also refrain from taking adverse action against employees flagged as “tentative nonconfirmations” during the shutdown, the notice says.
There’s still plenty of confusion. That’s because 22 states require at least some employers to use E-Verify, according to immigration software company LawLogix. But because the program is administered at the federal level, it can be hard to find a state official who will answer questions during the shutdown.
Will Whatley, a spokesman for the Alabama Department of Labor, says he can’t comment on hiring issues. He referred me to another state official, who has yet to respond. Karen Axsom, director of Arizona’s Labor Administration, says her office wasn’t responsible for E-Verify, and she wasn’t immediately sure which state agency could answer my questions. (All employers in these two states are required to use E-Verify.)
It’s unclear what will happen when the government reopens for business, says Alka Bahal, a Roseland (N.J.) corporate immigration lawyer at Fox Rothschild. Will the government reset the clock on the three-day rule when it resumes functioning? “Anyone who can give us the answers isn’t at work to pick up the call,” says Bahal.
Julie Pace, an employment lawyer at Cavanagh Law Firm in Phoenix, Ariz., says it could be even more complicated if the electronic system fails to recognize that the three-day rule was ever suspended. Business owners should make sure to follow the government’s guidance, she says, or risk getting flagged for submitting E-Verify checks after the three-day period has passed. The good news: “People have been asking, and I’ve been telling them, ‘You’re allowed to hire,’” she says.