How Border Wall Shutdown has Shutdown One “Electronic Border Wall”

On December 22, 2018,  the federal government officially shut down following contention over the proposed border wall. However, while the shutdown may be rooted in immigration concerns, the shutdown’s impact on immigration services will be relatively limited. This is because most of the organizations involved in U.S. immigration are deemed “essential agencies,” so they will continue operating as normally as they can. Further, funding has already been appropriated for many other agencies relevant to immigration, so as long as the money is there, these organizations will also remain open.

Still, when the government shuts down, confusion ensues. For employers and their workers, here is what you need to know:

Are E-verify and the I-9 Form affected by the shutdown? 

Almost all federal agencies responsible for immigration will remain fully operational during the shutdown. So, how is immigration being impacted by the government shutdown?

The brunt of the impact will fall on E-Verify, which is an essential tool for employers that need to verify work authorization. The I-9 Form process, though, is still required for authorizing new hires.  Here is what the government shutdown means for the process:

1. Form I-9 – Form I-9 remains mandatory under federal law, and new hires should still be required to fill out the form with their employer. It is important to note that even while the government shutdown is in effect, employers are still required to verify their employees.During a government shutdown, the I-9 Form process remains unchanged. That includes deadlines, so employers must still fill out the form within three days of hiring a new employee. New hires must also provide the proper identifying and work authorizing documents, adhering to the same timeline. Should the company’s I-9 Forms be audited at a later date, the auditing agency will expect any I-9 Forms filled out during a shutdown to be compliant in every way. That includes how the form is retained, so companies should not alter their I-9 Form processes, assuming they are already in compliance.
2. E-Verify – The Department of Homeland Security’s E-Verify website will be unavailable during the government shutdown. This means that nearly all of the shutdown’s impact on immigration will be centered on the program.Because it will be taken offline until the shutdown is resolved, E-Verify cannot be used to verify an employee’s work authorization, even in states where it is a required step. Further, it is currently impossible to enroll in E-Verify or terminate an account, to create a case in E-Verify, to take any action on an ongoing case, to add or manage any user credentials, to run any reports or to resolve Tentative Non-confirmations, or TNCs. In other words, employers won’t be able to access any part of the website.As long as the government remains in shutdown mode, employers will be given leniency regarding E-Verify use. Specifically, the three-day deadline has been suspended, so employers are not required to begin an E-Verify case within three days of hiring an employee. Also, if there are any ongoing TNCs, they do not have to be resolved until the government is no longer shutdown. Employers have been cautioned not to take any action against an employee who has received a TNC, or an employee whose case has been stalled as a result of the shutdown. These cases should be addressed further once the shutdown has ended.

What is not affected by the government shutdown?

Multiple federal agencies are involved with immigration, and most of them will continue functioning as normal. Those agencies include:

• Customs and Border Protection (CBP) – As CBP is one of the aforementioned essential agencies, it will continue operating through the government shutdown. That means CBP will still provide inspections at the Mexican and Canadian borders and will also enforce U.S. laws at the borders.
• Immigration and Customs Enforcement (ICE) –ICE is another essential agency and will also remain open during the shutdown. As such, employers should not expect ICE-run audits and inspections to cease or slow down during this time.
• Student and Exchange Visitor Information System (SEVIS) – Another essential agency, SEVIS will also operate during the shutdown. It is essential that universities remain compliant with any regulations related to SEVIS, as it is considered important for national security.
• United States Citizenship and Immigration Services (USCIS) –USCIS is a critical organization for ensuring the smooth flow of people in and out of the country. Fortunately, USCIS is funded by application and petition fees, so it will remain funded through the shutdown.
• Department of State (DOS) –DOS is not an essential agency and funding has not been set aside for the organization. However, DOS expects U.S. embassies and consulates to process visa applications as normal, as long as visa filing fee reserves remain. DOS has also confirmed that passport services will still function normally, unless those services are provided in a federal building that has been shut down.
• Passport Offices – The Department of State says that the only passport offices affected by the government shutdown are those located within a federal building that has been closed due to the shutdown.

• Department of Labor (DOL) –Funding has already been appropriated for the DOL through the 2019 fiscal year. As such, it is unaffected by the shutdown, which means current wage determinations, PERM processing and labor certifications will not be halted.

Government shutdowns bring a lot of uncertainty to the private sector, but employers and their employees won’t have to change much as a result. While E-Verify is down, the I-9 Form process remains unaffected, and the agencies responsible for immigration law enforcement are still up and running. Employers, then, should consider it business as usual when it comes to authorizing workers.