A Morning of Uncertainty
Employers awoke this morning to news of a federal government shutdown, prompting immediate concern over employment authorization compliance. Chief among those concerns: the availability of E-Verify. Questions like "Will E-Verify remain online?" "What happens to my new hires?" and "Do I still need to complete the Form I-9?" are understandably circulating throughout HR and legal departments.
At approximately 11:45 am on October 1, U.S. Citizenship and Immigration Services (USCIS) announced that E-Verify has been suspended due to the ongoing government shutdown. USCIS was in the process of taking the system offline at that time. Accordingly, employers will no longer be able to enroll in the system, initiate new cases, manage or receive updates on existing ones, or access technical support. Please subscribe to our blog Through the Immigration Lens for continued updates.
E-Verify: Authorized by Law, Vulnerable in Practice
Although E-Verify is authorized under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), its operations remain vulnerable during federal government shutdowns. Unlike some other USCIS programs that are funded through user fees, E-Verify relies on annual congressional appropriations. Given this, the system has been suspended during past shutdowns. Accordingly, the current suspension is not surprising.
Similar to previous suspensions, employers will be unable to create new cases, enroll in the program, resolve Tentative Nonconfirmations (TNCs), or access account data. While the current administration has signaled a strong focus on employment verification and compliance, the reality is that E-Verify cannot operate without government funds, regardless of the administration's policy stance.
Shutdown Doesn't Pause I-9s
That said, the obligation to complete the Form I-9 remains unchanged. Employers must ensure that employees complete Section 1 of the Form I-9 on or before their first day of work, and that employers complete Section 2 within three business days of the employee's start date. The government shutdown has no bearing on this requirement.
What Happens Now That E-Verify Is Down?
USCIS is following the same playbook from previous shutdown. In the interim, USCIS has suspended the "three-day rule" for E-Verify case creation, allowing employers to delay submissions without penalty. Similarly, employees navigating the Tentative Nonconfirmation (TNC) process have been granted additional time to resolve their cases.
While we await further guidance from USCIS regarding this shutdown, it is reasonable to expect USCIS to follow past practices should system access be disrupted. Until USCIS provides formal directions, employers must assume all rules remain in effect.
Thinking of Enrolling?
E-Verify is widely regarded as a best practice, but it is not without obligations. Employers considering enrollment should understand the compliance responsibilities associated with the program, including monitoring status changes and responding promptly to system alerts. Recent changes, such as automatic notifications for revoked work authorization, have placed even more responsibility on employers. Many employers were appreciative of such notifications while other considered it to be a burden creating an unfair advantage to non-E-Verify employers who had no knowledge of employment authorization revocations for certain parolees.
Nothing is Perfect
E-Verify remains susceptible to identity theft and document fraud, as its effectiveness is only as strong as the information employers input into the system. Employers serve as the first line of defense and must apply the "reasonable person" standard when reviewing identity and work authorization documents, accepting only those that appear genuine, belong to the employee, and are facially valid. E-Verify may not always detect fraud, for example, when an employee presents a valid Social Security number and ID card that were lawfully issued, but not to the new hire or the documents that were in fact manufactured (fraudulent). This remains an evolving area, and E-Verify continues to expand its fraud detection capabilities, including building partnerships with agencies such as state DMVs to reverify identity data and flag inconsistencies.
What Employers Should Do Now
At this time, employers should continue to complete Forms I-9 on schedule and, where required or permitted, create E-Verify cases within the required timeframe. It is also important to monitor USCIS' E-Verify page for updates, communicate proactively with affected employees, especially those with pending TNCs, and document any operational difficulties that arise due to the shutdown.
Employers should ensure that internal HR teams are informed, trained, and prepared for potential changes. In the event E-Verify becomes unavailable, prompt action and clear documentation will be essential to maintaining compliance.
A Shutdown Shouldn't Mean a Compliance Breakdown
While government shutdowns are disruptive, they do not excuse lapses in legal obligations. In an environment of heightened enforcement, preparation and vigilance remain essential. E-Verify may be operational for now, but employers should prepare for a possible shift in the days ahead.
We will continue to monitor developments closely and provide updated guidance as the situation evolves. For further information or to request assistance with E-Verify compliance, monitoring, or training, please contact Dawn Lurie at dlurie@seyfarth.com.
*Matthew Parker is a Senior Immigration Compliance Analyst. He is not admitted to the practice of law.
Thank you to Selene Malench, our Case Assistant, for her assistance with this post.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
