E-Verify has resumed operations following the government shutdown.  This federal government system used by many employers to confirm eligibility of employees to work in the United States had been closed during the 35-day shutdown.

While enrolling in E-Verify is mostly voluntary, once an employer is enrolled in E-Verify, it is critical to follow the rules and associated timelines with creating E-Verify cases for new hires.  During the shutdown, employers were unable to create E-Verify cases for new hires including those employees hired just before the shutdown and those hired during the shutdown.  It is important to remember during the shutdown, employers were still required to timely complete Form I-9.  Now that the shutdown is over, it is imperative employers take the following steps immediately:

  • Creating E-Verify Cases: Create an E-Verify case for every employee hired during (or just prior to) the shutdown by February 11, 2019.  Use the date of hire from the employee’s Form I-9.  If the E-Verify case creation date is more than three days after the date the employee began working for pay, select the option for “Other” in the drop down menu and enter “E-Verify Not Available” as the reason.
  • Handling TNCs:  If an employee received a Tentative Nonconfirmation (TNC) before E-Verify resumed, and the employee has notified the employer of his or her intention to contest the TNC by February 11, 2019, the employer should revise the date by which the employee must contact the Social Security Administration (SSA) or Department of Homeland Security (DHS) to resolve the TNC.  Specifically, the employer should add 10 federal business days to the date on the “Referral Date Confirmation” notice and provide the revised notice to the employee (the employer may revise the dates on the hard copy of the notice after printing a copy).  Federal business days are Monday through Friday and do not include federal holidays.  This  extended deadline does not apply to TNC cases referred after E-Verify resumed operations.
  • Advising Federal Contractors:  DHS guidance is that any calendar day during which E-Verify was unavailable during the shutdown should not count toward the federal contractor deadlines.  Federal contractors must consult with their contracting officer as to how to proceed.

As a result of the lengthy shutdown, E-Verify anticipates there will be delays in processing times and in responses to requests for assistance.  Employers who utilize E-Verify will need to remain alert in the event there is another government shutdown in February.  Please contact your Fox Rothschild Immigration Attorney with any questions.

On Oct. 28, 2015 U.S. Citizenship and Immigration Services (USCIS) announced new Enhancements to E-Verify designed to make use of the system easier:

E-Verify launched three new enhancements to improve effectiveness, efficiency and customer satisfaction.

  • Temporary Protected Status (TPS) Auto Extension upgrade makes it easier for E-Verify to confirm that employment authorization has been automatically extended for TPS beneficiaries. To learn more about how TPS affects the Form I-9 process, visit I-9 Central.
  • Case Details Page Redesign reduces data fields so that case details print on one page. This enhancement was the #1 E-Verify Listens idea. Visit E-Verify Listens today to discuss how we might improve your Form I-9, E-Verify and my E-Verify experience.
  • Updated Further Action Notices and Tentative Nonconfirmation (TNC) emails now include the myE-Verify Case Tracker link. myE-Verify Case Tracker increases transparency in the TNC process by enabling employees to check the status of their own E-Verify case, whether or not they have a myE-Verify account.

Find revised samples of the Further Action Notices, TNC emails and other resources in English, Spanish and 19 other languages on our Foreign Language Resources page.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP.  Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

On September 30, 2015, President Obama signed a Continuing Resolution to extend funding of the US government through December 11, 2015, and temporarily avoid a government shutdown.  See http://www.wsj.com/articles/senate-passes-government-funding-bill-prior-to-midnight-deadline-1443623598.  The Continuing Resolution contained extensions for several important immigration programs including:

  • EB-5 Regional Centers
  • Conrad 30 J-1 Physician Waivers
  • Nonminister Religious Workers, and
  • E-Verify.

These programs were continued unchanged until December 11, 2015.

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Ms. Wadhwani is a partner in the Immigration Practice Group at Fox Rothschild LLP.  She may be reached at cwadhwani@foxrothschild.com.

Since 2008, DHS has permitted F-1 students whose study was in a STEM field and whose employer is an E-Verify participant to have an additional 17-month period of OPT (Optional Practical Training).  Thousands of students and E-Verify employers have benefited from this extended period of employment authorization.  The work of these students has resulted in a challenge to STEM OPT by tech workers; specifically a suit in the U.S. District Court for the District of Columbia, Washington Alliance of Technology Workers v. U.S. Department of Homeland Security.

On August 12, 2015, the Judge before whom the case is pending VACATED the STEM OPT Extension program as its creation failed to comply with the notice and comment requirements of the Administrative Procedures Act (APA).  The court recognized the serious disruption that would result from the immediate implementation of her finding, so stayed the order for 6 months, during which time DHS could comply with the requirements of the APA.

The litigation continues and hopefully, STEM OPT will be able to continue uninterrupted beyond February 12, 2016.

Notwithstanding the years’ old gridlock in regard to immigration reform, some significant changes will take place on or before September 30th.  It’s not that Congress has had an epiphany.  Several important immigration laws will sunset on September 30th unless reauthorized by Congress.  If Congress does nothing, four major immigration programs will come to an end: E-Verify, the Conrad State 30, EB-5 and the Special Immigrant Non-minister Religious Worker programs.

E-Verify is the mostly voluntary electronic employment eligibility verification program used by hundreds of thousands of US employers in conjunction with their I-9 employment eligibility verification of new workers.

The Conrad State 30 program allows each state and the District of Columbia to recommend up to 30 waivers per year of the 2-year home-residency requirement imposed upon J-1 physicians who have completed medical training in the US.  In exchange for the waiver, the physician must practice medicine in a medically underserved area pursuant to state and federal guidelines. Conrad 30 waivers have resulted in countless medically underserved Americans having access to medical care that otherwise would not be available.

EB-5 is the employment creation visa that provides a path to permanent residence for aliens who invest $1 million or more in a new commercial enterprise which creates 10 or more full time jobs.  There is an option for investment of $500,000 in a high unemployment area known as a “targeted employment area”.  The EB-5 program has enabled billions of dollars in investment in the US and many thousands of new full-time jobs for US workers.

The Non-minister Religious Worker program is much more limited than the other 3 programs, but no less important for the religious organizations who rely on these workers.

These are major programs whose sunset would have such extraordinary implications.  As such, it is unlikely that they will all sunset; however, there may be material changes.  In anticipation of change, many potential EB-5 investors are filing their applications, many medical providers are seeking Conrad 30 waivers and religious organizations are petitioning for their currently eligible workers.

By September 30th, whether there is Congressional action or inaction each of these 4 immigration programs will be effected, resulting in their substantive change, simple reauthorization or termination.

In November, U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas announced an enhancement to the E-Verify program that will help combat identity fraud by identifying and deterring fraudulent use of Social Security numbers (SSNs) for employment eligibility verification.

According to USCIS, this enhancement provides a critical safeguard to the E-Verify system by detecting and preventing potential fraudulent use of SSNs to gain work authorization.  An employer, for example, may enter information into E-Verify that appears valid – such as a matching name, date of birth, and SSN – but was in fact stolen, borrowed or purchased from another individual.  This new safeguard now enables USCIS to lock a SSN that appears to have been misused, protecting it from further potential misuse in E-Verify.

“We are committed to strengthening E-Verify’s ability to combat identity fraud,” said Director Mayorkas. “This new enhancement provides yet another significant safeguard for E-Verify users and could assist employees who have had their Social Security numbers stolen or compromised.”

The new enhancement strengthens the E-Verify program by implementing standards that have proven effective in protecting individual identity.  Just like a credit card company will lock a card that appears to have been stolen, USCIS may now lock SSNs in E-Verify that appear to have been used fraudulently.  USCIS will use a combination of algorithms, detection reports and analysis to identify patterns of fraudulent SSN use and then lock the number in E-Verify.  This will help deter and prevent fraudulent use of SSNs in the E-Verify system.

If an employee attempts to use a locked SSN, E-Verify will generate a “Tentative Nonconfirmation” (TNC).  The employee receiving the TNC will have the opportunity to contest the finding at a local Social Security Administration (SSA) field office.  If an SSA field officer confirms the employee’s identity correctly matches the SSN, the TNC will be converted to “Employment Authorized” status in E-Verify.  Employees who successfully confirm their identities are encouraged to call USCIS so they can learn more about available resources on identity theft and fraud prevention.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP.  Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

November 13, 2013
2 p.m. ET | 11 a.m. PT

Join Fox Rothschild’s Alka Bahal and INSZoom’s Dan Kearney as they walk you through everything you need to know to stay compliant with E-Verify regulations and manage your E-Verify program now that the system is back online (in light of the 16 day period it was shut down).

Register to Attend

Today, October 17, 2013, United States Citizenship and Immigration Services (USCIS) issued an alert notifying the public that E-Verify has resumed operations following the federal government shutdown, and all E-Verify features and services are available:

The following information addresses questions on how the federal government’s shutdown affected E-Verify and Form I-9.

Form I-9

The Form I-9 requirements were not affected during the federal government shutdown. All employers must complete and retain a Form I-9 for every person hired to work for pay in the United States during the shutdown.

E-Verify

Employees who received a Tentative Nonconfirmation (TNC)

If an employee had a TNC referred between September 17, 2013 and September 30, 2013 and was not able to resolve the TNC due to the federal government shutdown, add 12 federal business days to the date printed on the ‘Referral Letter’ or ‘Referral Date Confirmation.’ Employees have until this new date to contact the Social Security Administration (SSA) or the Department of Homeland Security (DHS) to resolve their cases. If you have an employee who decided to contest his or her TNC while E-Verify was unavailable, you should now initiate the referral process in E-Verify. Employers may not take any adverse action against an employee because of a TNC.

Employees who received a SSA Final Nonconfirmation (FNC) or DHS No Show result

If an employee received a Final Nonconfirmation (FNC) or No Show because of the federal government shutdown, please close the case and select “The employee continues to work for the employer after receiving a Final Nonconfirmation result,” or “The employee continues to work for the employer after receiving a No Show result.” The employer must then enter a new case in E-Verify for that employee. These steps are necessary to ensure the employee is afforded the opportunity to timely contest and resolve the Tentative Nonconfirmation (TNC) that led to the FNC result.

Creating Cases: Three-Day Rule

You must create an E-Verify case for each employee hired during or otherwise affected by the shutdown by November 5, 2013. If you are prompted to provide a reason why the case is late (i.e., does not conform to the three-day rule), select ‘Other’ from the drop-down list of reasons and enter ‘federal government shutdown’ in the field. Federal Contractor Deadlines During the federal government shutdown, federal contractors could not enroll or use E-Verify as required by the federal contractor rule. If your organization missed a deadline because E-Verify was unavailable or if it has an upcoming deadline for complying with the federal contractor rule, please follow the instructions above and notify your contracting officer of these instructions.

Federal Contractor Deadlines

During the federal government shutdown, federal contractors could not enroll or use E-Verify as required by the federal contractor rule. If your organization missed a deadline because E-Verify was unavailable or if it has an upcoming deadline for complying with the federal contractor rule, please follow the instructions above and notify your contracting officer of these instructions.

Information For Employees

If the federal government shutdown prevented you from contesting a Tentative Nonconfirmation (TNC), you will be allowed additional time to contact the Social Security Administration (SSA) or Department of Homeland Security (DHS). If your TNC was referred between September 17, 2013 and September 30, 2013, and you were not able to resolve the mismatch due to the federal government shutdown, you should:

• Add 12 federal business days to the date printed on the ‘Referral Letter’ or ‘Referral Date Confirmation’ that your employer provided you after you contested the TNC. Federal business days are Monday through Friday and do not include federal holidays.

• Contact SSA or DHS by the new date to resolve your TNC.

If you received a Final Non-Confirmation (FNC) because you could not contact DHS or SSA during the federal government shutdown, or because you could not contact DHS or SSA in the first ten days after the government reopened, please contact your employer and request that the employer re-enter your query. For more information about contesting your TNC or FNC, please refer to Employee section of the E-Verify website.

Customer Support

E-Verify Customer Support expects an increase in requests for assistance. Due to this increase, customers may experience longer than normal delays and response times. We apologize for any inconvenience and appreciate your patience. For any questions or additional information about how the federal shutdown affects E-Verify, please email E-Verify@dhs.gov. For questions about Form I-9, please visit I-9 Central or email I-9Central@dhs.gov. Employers and employees may also contact E-Verify at 888-464-4218. Customer Support representatives are available Monday through Friday 8:00 am to 5:00 pm local time. The Contact E-Verify page also lists phone numbers and e-mail addresses.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

On Tuesday, April 16, 2013, the bipartisan group of senators known as the “Gang of Eight” introduced S. 744, the “Border Security, Economic Opportunity, and Immigration Modernization Act.” 

The bill is widely described as a clear “compromise,” where no one person or party will get everything they want, including the President, however President Obama, in a statement he wrote on Tuesday urging the Senate to quickly move the bill forward, that the bill is consistent with his principles on comprehensive immigration reform:

“This bill would continue to strengthen security at our borders and hold employers more accountable if they knowingly hire undocumented workers.  It would provide a pathway to earned citizenship for the 11 million individuals who are already in this country illegally, …and it would modernize our legal immigration system so that we’re able to reunite families and attract the highly skilled entrepreneurs and engineers who will help create good paying jobs and grow our economy.”

The Senate Judiciary Committee was scheduled to hold a hearing on the bill on Wednesday, but it has been postponed until Friday morning, according to the committee’s schedule.

Below are eight initial points of interest pulled from the bill’s provisions.  This by no means a comprehensive review of the bill, but here are just a few things S.744 would do:

  1. Legalization: Allow noncitizens who are unlawfully present and who entered the U.S. before December 31, 2011 to adjust status to that of Registered Provisional Immigrant (RPI). Eligible applicants would be required to pay a penalty and back taxes. Individuals in RPI status would receive work authorization and may travel abroad. They would also become eligible to apply for LPR status after 10 years, and can apply for naturalization 3 years after acquiring a green card. Includes generous provisions for DREAMers and agricultural workers.
  2. Family-Based Immigrants: Move the current FB-2A category into the immediate relative classification, allow for derivatives of immediate relatives, eliminate the FB-4 category, cap the age of eligibility of married sons and daughters of U.S. citizens at 31, and bring back the V visa.
  3. Employment-Based Immigrants: Exempt the following categories from the quota: EB-1 immigrants, doctoral degree holders, physicians who have completed the foreign residency requirement, and derivatives. Add a new “EB-6” category for certain entrepreneurs.
  4. Temporary Workers: Create a W-1 visa for lesser-skilled workers, a W-2 visa for aliens coming to the U.S. temporarily to perform agricultural services or labor under a written contract, and a W-3 visa for “at-will” workers with an offer of full-time employment in an agricultural occupation. The W-2 and W-3 visas would replace the current H-2A agricultural worker program.
  5. Asylum: Eliminate the one-year filing deadline and authorize asylum officers to grant asylum during credible fear interviews.
  6. E-Verify: Require all employers to be on the system after 5 years.
  7. H-1Bs: Increase the quota to a floor of 110,000 and a ceiling of 180,000, increase the U.S. advanced degree exemption to 25,000 but limit it to STEM graduates, add a recruitment requirement for all H-1B labor condition applications involving a detailed posting on an Internet site designed by the Labor Department, add a non-displacement attestation, change the prevailing wage formula, provide EADs for spouses, and add a 60-day grace period after an H-1B has been terminated from his or her job.
  8. Fraud: Make it a crime to knowingly defraud an immigrant or hold oneself out as an attorney or BIA accredited representative when one is not authorized to do so. Require the identification of individuals who assist immigrants with the completion of forms and empower the Attorney General with injunctive authority to act against an unscrupulous “immigration service provider” at the federal level.

We welcome your comments!