ABCs of Immigration: How Immigration Functions Will be Impacted by a Government Shutdown

Posted on: January 24th, 2018
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The US Federal government could shut down on January 20, 2018, at 12 am, because as of the writing of this article at the end of the workday on January 18th, Congress has not passed legislation to continue funding. A key issue in the dispute which could lead to the shutdown is the fight over immigration policy, a subject that will be discussed elsewhere. This article advises on how the immigration functions of the US government will operate during the shutdown.

First, not every agency will shut down. Some functions are deemed “essential” and employees will continue working. And others are fee supported so can continue regardless of Congress appropriating money. The last time the country had to deal with this was nearly 5 years ago so much of this article will work on the assumption that practices in 2013 will be the same as 2018. We will update this article as we learn of changes.

As an aside, this is nothing new for immigration lawyers. We experienced a shutdown like this in 1995-1996 and here’s how we wrote about it at the time:

It is our hope that this story will be out of date by the time you read this newsletter. But as of December 29th, the last working day of 1995, the federal government remains shutdown. This is the longest such closure in United States history. While certain government functions continue, there have been substantial disruptions in overall visa processing. Most INS operations are continuing uninterupted since processing is paid for with user fees and not government appropriations. So there have been no serious delays in applications filed with regional service centers and local INS offices. Some INS offices have cutback on informational services, however, and others are, reportedly not accepting new applications. Your best bet is to not assume the local office is functioning and to check first.

H-1B and labor certification activities have been disrupted since the US Department of Labor is not operating. There are remedies available if you are caught in a situation where you need to file an H-1B application right away due to falling out of status. You should consult with an immigration attorney to learn more about potential solutions.

Persons seeking visas at US Consulates are out of luck until the government reopens. If you had an appointment for a visa interview and the interview has been canceled due to the shutdown, your interview must be rescheduled by the Consulate.

Proceedings in front of Immigration Judges have also come to a halt and will have to be rescheduled. You or your attorney will be notified of rescheduling by the Immigration Judge’s clerk after the shutdown ends.

So what can we expect? Well, here’s a roundup of how different agencies are expected to handle the crisis.

DOL. We don’t have official word yet on how the Department of Labor will respond to a shutdown. But here’s what the agency advised in 2013:

The Administration is working very hard to avoid a government shutdown and believes there is sufficient time to avoid such an occurrence; however, prudent management requires the Department to plan for the possibility that it may need to suspend operations should Congress be unable to pass a funding bill by midnight on Monday, September 30, 2013.

OFLC functions are not “excepted” from a shutdown and its employees would be placed in furlough status should a lapse in appropriated funds occur. Consequently, in the event of a government shutdown, OFLC will neither accept nor process any applications or related materials (such as audit responses) it receives, including Labor Condition Applications, Applications for Prevailing Wage Determination, Applications for Temporary Employment Certification, or Applications for Permanent Employment Certification. OFLC’s web site, including the iCERT Visa Portal System, would become static and unable to process any requests or allow authorized users to access their online accounts.

So expect any matters relying on DOL accepting and processing immigration-related applications to stop. That will mean no Labor Condition Application submissions for H-1B cases and no PERM filings with DOL. If you have an approved LCA, an H-1B application can still be filed (see below). Otherwise, all of those processes will come to a halt.

[Update 1/21/2018: The American Immigration Lawyers Association advised members that the Department of Labor has informed the organization that it would not change it’s procedures from 2013. Expect additional guidance regarding the treatment of deadlines that are missed because DOL is not able to accept responses. In 2013, accommodation was made for such circumstances.]

 

USCIS. USCIS should largely operate as normal because it’s activities are supported by filing fees and not congressional appropriations. The exception is E-Verify which will shut down. Also, expect some other USCIS functions, like information services and Freedom of Information Act requests to be disrupted. And USCIS processing might be delayed to the extent processing depends on receiving information from other agencies. So, for example, an H-1B application may not be able to be submitted if the Department of Labor paperwork can’t be completed. USCIS could allow for filings without the paperwork, but don’t count on it.

Regarding E-Verify, in 2013 USCIS has provided the following instructions:

While E-Verify is unavailable, you will not be able to access your E-Verify account. As a result, you will be unable to:

  • Enroll any company in E-Verify
  • Verify employment eligibility
  • View or take action on any case
  • Add, delete or edit any User ID
  • Reset passwords
  • Edit your company information
  • Terminate an account
  • Run reports
  • View ‘Essential Resources.’ Please note that all essential resources may be found by visiting www.dhs.gov/e-verify.

In addition, E-Verify Customer Support and related services are closed. As a result:

  • Employees will be unable to resolve Tentative Nonconfirmations (TNCs).
  • Telephone and e-mail support will be unavailable. You may send e-mails, however, we cannot respond until we reopen.
  • E-Verify webinars and training sessions are canceled
  • E-Verify Self Check will not be available

We understand that E-Verify’s unavailability may have a significant impact on your company’s operations. To minimize the burden on both employers and employees, the following policies have been implemented:

  • The ‘three-day rule’ for E-Verify cases is suspended for cases affected by the shutdown. We’ll provide additional guidance once we reopen. This does NOT affect the Form I-9 requirement—employers must still complete the Form I-9 no later than the third business day after an employee starts work for pay.
  • The time period during which employees may resolve TNCs will be extended. Days the federal government is closed will not count towards the eight federal government workdays the employee has to go to SSA or contact DHS. We will provide additional time once we reopen.
  • For federal contractors complying with the federal contractor rule, please contact your contracting officer to inquire about extending deadlines.
  • Employers may not take any adverse action against an employee because of an E-Verify interim case status, including while the employee’s case is in an extended interim case status due to a federal government shutdown (consult the E-Verify User Manual for more information on interim case statuses).
[Update: 1/21/2018 – USCIS has posted the following on its web site:

Lapse in Federal Funding for Certain USCIS Operations

The current lapse in annual appropriated funding for the U.S. government does not affect USCIS’ fee-funded activities. Our offices will remain open, and all applicants should attend interviews and appointments as scheduled.

However, several USCIS programs will either expire or suspend operations, or be otherwise affected, until they receive appropriated funds or are reauthorized by Congress. These include:

  • EB-5 Immigrant Investor Regional Center Program. Regional centers are a public or private economic unit in the United States that promote economic growth. USCIS designates regional centers for participation in the Immigrant Investor Program.
  • E-Verify. This free internet-based system allows businesses to determine the eligibility of their employees to work in the United States.
  • Conrad 30 J-1 doctors. This program allows J-1 doctors to apply for a waiver of the two-year residence requirement after completing the J-1 exchange visitor program. The expiration only affects the date by which the J-1 doctor must have entered the United States; it is not a shutdown of the Conrad 30 program entirely.
  • Non-minister religious workers. This special immigrant category allows non-ministers in religious vocations and occupations to immigrate or adjust status in the United States to perform religious work in a full-time, compensated position.]

Immigration Courts. In 2013, the Executive Office for Immigration Review, the agency that runs immigration courts, allowed processing to continue for detained immigrants. Others will likely end up seeing their cases rescheduled. In 2013, The Washington Post reported that EOIR had enough money to operate for about 10 business days and only about 400 of the roughly 1300 EOIR employees would be working. As the shutdown ended in two weeks, that funding was sufficient.

Consulates and DOS processing. In past shutdowns, visa processing ground to a virtual halt, but that changed in 2013. As the State Department reported at the time:

Consular operations domestically and overseas will remain 100% operational as long as there are sufficient fees to support operations. However, if a passport agency is located in a government building affected by a lapse in appropriations, the facility may become unsupported. The continuance of consular operations in such instances will be treated on a case-by-case basis by the Under Secretary for Management.

Of course, 2018 is a different time for the State Department. Operations have been hampered since the beginning of last time by a large number of unfilled openings at consulates throughout the world.

The J-1 Waiver Review Division reported in 2013 that they were unaffected by the shutdown. J-1 waivers are fee-supported so that would presumably mean operations will continue.

[Update: On 1/19/2018, State Department Spokeswoman Heather Nauert noted that “Our Secretary’s office right now is reviewing the available options as to how we should handle some of the decision-making going forward, if this were to happen, if there were to be a government shutdown. We will be prepared for all contingencies – I want to make that clear – including the possibility of a lapse. That would mean a government shutdown. OMB, the Office of Management and Budget, has requested that all agencies determine ways to minizme the impact on the American people….I think that would fall under visas and passports and the like. This is what we’re doing here from the State Department. Some of these decisions are still being made, exactly what services we will be able to provide and which ones we will not.”]

 

[Update from 1/21/2018: DOS posted the following statement on its web site: “At this time, scheduled passport and visa services in the United States and at our posts overseas will continue during the lapse in appropriations as the situation permits.  This website will not be regularly updated until full operations resume, with the exception of emergency safety and security information.”]

 

Border Operations. CBP’s Border Patrol and port of entry inspection operations as well as Customs inspecting should continue, but expect delays and expect some applications filed at ports of entry to potentially be impacted.

ICE. Immigration enforcement will continue as before. But ICE trial attorneys will only be working on the detained immigrants docket. SEVIS, the online system tracking F-1 students and J-1 visitors, should remain unaffected because of the SEVIS fee that supports its operations.

CIS Ombudsman. In 2013, the Ombudsman ceased operating during the shutdown and that will presumably be the case in 2018.

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