Immigration Law Insights

The current government shutdown does not affect the vast majority of USCIS's activities. Their offices are open, and interviews and appointments are proceeding as normal. USCIS continues to accept petitions and applications for benefit requests with only a few exceptions.  The USCIS programs that will face disruption until they receive appropriated funds or are reauthorized by Congress are the EB-5 Immigrant Investor Regional Center Program (not the EB-5 Program, it continues to operate), E-Verify, Conrad 30 Waiver Program for J-1 medical doctors (not a shutdown of the program entirely), and non-minister religious workers.

Of these programs, perhaps the most widely used is E-Verify.  It is currently unavailable and employers are not able to access their E-Verify accounts to enroll in E-Verify, create an E-Verify case, view or take action on any case, add, delete or edit any user account, reset passwords, edit company information, terminate accounts, and run reports.  In addition, employees will be unable to resolve E-Verify Tentative Nonconfirmations (TNCs).

In order to minimize the burden on both employers and employees, several policies have been implemented by the government.  The three-day rule for creating E-Verify cases is suspended for cases affected by the unavailability of E-Verify.  The time period during which employees may resolve TNCs will be extended. The number of days E-Verify is not available will not count toward the days the employee has to begin the process of resolving their TNCs.  E-Verify will provide additional guidance regarding the three-day rule and time period to resolve TNCs deadlines once operations resume.  Importantly, employers may not take adverse action against an employee because the E-Verify case is in an interim case status, including while the employee's case is in an extended interim case status due to the unavailability of E-Verify.

The lapse in government appropriations does not affect Form I-9 requirements. Employers must still complete Form I-9 no later than the third business day after an employee starts work, and comply with all other Form I-9 requirements.  Employers should continue to complete Form I-9 as usual with the expectation that individuals hired during the shutdown will need to be E-Verified once the system becomes available.