Gridlock in the current government is directly impacting the workplace.  One of the agencies directly affected by the shutdown is the Department of Homeland Security (“DHS”).  As a result, the E-Verify program is offline and is expected to remain unavailable until the government is again funded.

While this presents an invariable challenge, don’t let it get you down or allow your New Year to start off on the wrong foot.  Let’s discuss the situation so you can successfully maneuver through this frustrating situation while remaining in compliance and not allowing the shutdown to adversely impact your business.

As a threshold matter, let’s point out what you WON’T be able to do during the shutdown:

  • Enroll in E-Verify;
  • Verify employment eligibility;
  • View or take action in any case;
  • Add, delete, edit any user ID;
  • Add, delete or edit company information;
  • Reset passwords;
  • Terminate accounts;
  • Run reports;
  • View “Essential Resources.”

E-Verify telephone and email support will also remain unavailable.  One of the largest challenges this presents is the inability to resolve Tentative Nonconfirmations (when the information entered into E-Verify fails to match what is in the record).

To minimize the burdens this places on both employers and employees, the U.S. Citizenship and Immigration Services (“USCIS”) has implemented the following policies:

  • USCIS has suspended the “three-day rule” for in any case impacted by the shutdown.
  • The period to resolve TNCs is extended.  Each day the shutdown continues will not count towards the eight federal government workdays the employee has to resolve the issue.  USCIS has further stated it will provide additional time to resolve TNCs once they reopen.

Here are some things to keep in mind:

  1. Complete I-9s!  You should still comply with the rule requiring you to complete the I-9 no later than the third business day after an employee’s start date.
  2. DO NOT TAKE ADVERSE ACTION against an employee because of an E-Verify interim case status.
  3. Do not refuse to hire an employee because he or she cannot be verified in the system.  Employees should not be prejudiced because of the shutdown.
  4. Prepare as though services will resume at any time.   Don’t let this situation negatively impact your operations by creating a backlog.  Prepare for an increased volume in cases.  Also, consider implementing processes to follow once the system is restored to avoid missing any steps.  Plan now!
  5. Remain in compliance!  Remember, workplace enforcement remains a high priority for Immigrations and Customs Enforcement.

In the meantime, HIRE!  Do not let this shutdown affect your business needs.  Good faith completion of your I-9 is an affirmative defense against an accusation of knowingly hiring unauthorized workers.

About the Author: Alejandro Pérez is a partner at Jaburg Wilk. Fully bilingual, Alejandro assists employers of all sizes with labor and employment law issues. In addition to representing clients in litigation, Alejandro provides advice and counsel on HR decisions; conducts sensitive workplace investigations; drafts and reviews employment policies, handbooks, and agreements; and trains workforces on a variety of aspects of employment law.

This blog is provided for educational and informational purposes only.  To speak with an attorney, please contact our office at 602.248.1000 or email