Employers: Don’t Let the Government “Shutdown” Your New Hire Plans

Thursday, October 3, 2013 - 3:15pm

During the U.S. Government “Shutdown,” E-Verify is not operational and the Social Security Administration isn’t issuing any new Social Security cards. This has left many employers wondering whether they must put plans to onboard new employees on hold until the shutdown ends and services resume. From an immigration law perspective, the answer is no. In fact, you may be in violation of the law if you do.

Is your foreign national recruit without a social security card? A social security number or card is not necessary to complete the Form I-9 UNLESS an employer participates in E-Verify. The E-Verify User Manual states:

“If a newly hired employee has applied for, but has not yet received an SSN (i.e., the employee is a newly arrived immigrant), attach an explanation to the employee’s Form I-9 and set it aside. Allow the employee to continue to work and create a case in E-Verify using the employee’s SSN as soon as it is available. If the case was not created by the third business day after the employee started work for pay, indicate the reason for this delay in E-Verify. You may choose a reason from the drop-down list or state a specific reason in the field provided.”

Won’t all your E-Verify cases for employees hired during the shutdown appear late? They will, but USCIS has sent out guidance to employers indicating that the ‘three day rule’ for E-Verify cases is suspended for cases affected by the shutdown and that employees will be granted extensions to resolve TNCs. That means employers are also required to grant extensions to employees to resolve those TNCs.

Now here’s the wrinkle… What do your organization’s policies, as well as your contractual obligations require? Some organizations, for administrative purposes, require that all employees, regardless of citizenship status obtain their social security card before their start date, or within a very tight timeframe within their start date. Other organizations have contractual obligations with their clients to receive verification of employment eligibility through E-Verify before an employee can begin performing work for that client. Federal Contractors, in particular, will run into issues here and have only been given guidance to contact their contracting officer to obtain an extension.

So, be aware of your organization’s commitments, both in policy and contracts before determining how to proceed with onboarding of new hires during the shutdown, but the lack of E-Verify services and a Social Security Card, in and of itself, should not be a barrier to keeping plans on track for you and your new employees.