Are There Penalties for Missed E-Verify Deadlines During the Shutdown?

(UNITED STATES) Employers across the United States faced an unusual compliance question this month after the federal government shutdown froze E‑Verify for a week, making on‑time case creation impossible for new hires processed during the outage.

The Department of Homeland Security confirmed that the three-business-day rule for opening E‑Verify cases is temporarily suspended for the dates the system was down, and said employers “will not face penalties” for delays tied to the outage. According to the agency, E‑Verify was offline from October 1 to October 7, 2025, and employers now have until October 14, 2025 to enter cases that would normally have been created within three business days.

The move, announced after the system came back online, affects businesses nationwide that rely on E‑Verify to confirm work authorization during onboarding. It also calms growing worries among human resources teams that had documented hires but could not submit cases while the portal displayed maintenance messages. USCIS guidance directs employers to select “Other” and then choose “E-Verify Not Available” as the reason for each delayed case—this step is meant to clearly link the late action to the government shutdown rather than employer error. Officials said normal rules resume after that date.

I‑9 requirements vs. E‑Verify timing

While the E‑Verify clock paused, the underlying Form I‑9 process did not. Employers still had to:

• Complete Section 1 by the employee’s first day of work.
• Complete Section 2 within three business days.

USCIS emphasized that the days the system was down do not count toward E‑Verify’s three-business-day rule or toward the timeframe for resolving Tentative Nonconfirmations (TNCs). That means:

• A worker who received a TNC before the outage—or who triggers one when a late case is finally opened—should be given the normal time to take action once the case is active again.
• Employers are prohibited from taking adverse action (e.g., suspending or firing someone) because an E‑Verify case could not be opened or moved forward during the outage. The ban covers delays caused by the government shutdown and remains in place while any TNC is pending.

Employers who need I‑9 instructions can find official guidance on the USCIS website at the Form I‑9 page, available here: Form I-9.

Action steps and recommended documentation

With E‑Verify restored, employers have a short window to catch up. USCIS set October 14, 2025 as the last day to create cases for hires made while the portal was offline.

USCIS instructions and best practices:

1. Create the delayed E‑Verify case(s) by October 14, 2025.
2. When prompted, select “Other” and then “E-Verify Not Available” as the delay reason.
3. Keep internal notes documenting:
   • Onboarding and hire dates
   • Attempts to access the site during the outage
   • When each catch‑up case was created

These entries will flag submissions as tied to the outage so they are not treated as ordinary late filings. For workers who receive a TNC after a late case is opened, the countdown for their response starts when the referral is issued—not during the days E‑Verify was unreachable.

HR teams that run batch uploads should confirm vendor queues are posting without errors. Check approval flows for new sites and users—some permissions expired during the pause and needed resetting when service resumed. Smaller workplaces without specialists may still face confusion; extra attention is advised.

For basic program details, employers can refer to the official E‑Verify site: E-Verify, which confirms that service was unavailable during October 1–7, 2025 and that cases created by October 14, 2025 will be accepted without penalty.

Federal contractors and contracting officers

Federal contractors face an additional compliance layer. While DHS’s suspension of the three-business-day rule covers all employers for the outage period, contract deadlines can mirror or add to federal onboarding duties.

Guidance for contractors:

• Contact your contracting officer for written guidance on schedule adjustments, extensions, or cure notices tied to the weeklong gap.
• Align catch‑up plans with any contracting officer directions and preserve copies of that guidance in contract files.

DHS reiterated that adverse actions based on delays caused by the government shutdown are prohibited, including for workers on federal projects whose E‑Verify cases could not be opened.

Employer and employee perspectives

Business groups and HR professionals had pushed for relief once the outage became apparent, warning employers could not meet deadlines reliant on a government system being available. The DHS statement that employers “will not face penalties” for delays during the shutdown was welcome news—especially for small employers without compliance staff.

Practical measures employers are taking:

• Documenting hire and start dates in detail to show steps within their control were completed on time.
• Posting notices in break rooms and onboarding portals to reassure new hires their start dates and pay are unaffected by delayed E‑Verify processing.
• Reminding hiring staff that the three-business-day rule governs case creation only when the system is available, and that offline days don’t count toward case-creation timing or a worker’s window to respond to a TNC.

Employee advocates emphasize that the prohibition on adverse action is critical, because workers fear pending TNCs or delayed cases could cost them hours or jobs. The guidance clarifies that the program’s offline days do not count against a worker’s opportunity to challenge a TNC, and managers must keep schedules steady until a final result is issued.

Key takeaway: Complete Form I‑9 on the normal timeline, create the E‑Verify case by October 14, 2025, and mark the delay reason as “E-Verify Not Available.”

Operational impacts and vendor actions

The outage prompted employers to revisit training and escalation plans for future disruptions. HR software vendors issued bulletins explaining how to tag late cases with the required “Other” reason and the “E-Verify Not Available” selection; some vendors added temporary prompts to reduce miscoding.

Recommended operational steps:

• Track hires that fall within October 1–7, 2025.
• Keep a log showing when each catch‑up case was created ahead of the October 14, 2025 deadline.
• Stagger large batch submissions if needed to avoid timeouts and manage system capacity.

Finance and operations teams noted lost productivity from attempts to access a broken portal during peak hiring times. Still, the guidance removed the greater worry that late cases caused by the outage would trigger penalties.

Legal context and limits of relief

Legal advisors note DHS’s measure is narrowly tailored to a government‑caused outage. Important points:

• The suspension applies only to E‑Verify case‑creation timing during the specific outage days.
• Employers remain responsible for timely and accurate Form I‑9 completion.
• Anti‑discrimination rules still apply—employers cannot treat workers differently because of citizenship or national origin.
• The relief is consistent with prior outages where the agency tolled the E‑Verify clock but did not excuse I‑9 errors.

For multi‑state employers, the policy provides a uniform baseline during the outage window, regardless of state E‑Verify enrollment mandates. By anchoring the delay reason to the outage, DHS aims to distinguish these entries from genuinely late filings where an employer missed a deadline under normal conditions.

Next steps and deadlines

Attention now turns to the days leading up to October 14, 2025, the USCIS catch‑up deadline. After that date, regular timing rules resume and the three-business-day rule will govern new hires as before the shutdown.

Priority checklist:

• Prioritize creating E‑Verify cases for hires dated October 1–7, 2025.
• Document the delay reason with “Other” → “E-Verify Not Available”.
• Continue standard onboarding for hires after the outage period.
• Federal contractors: maintain communication with contracting officers and preserve any written directions.

Worker advocates will watch to ensure the ban on adverse actions is respected while TNCs are pending. For now, the combination of a clear deadline, explicit tolling of outage days, and firm reminders to avoid adverse actions gives employers a path to compliance without penalties for circumstances outside their control.

As more cases are opened and confirmed, the weeklong interruption will likely be recorded in files as an exception period, not a change in policy.