Tuesday, January 23, 2018

Government Shutdown - Effect on Immigration Matters

By Angela Lopez

In the United States, a government shutdown occurs when Congress and the President fail to pass appropriations legislation to fund government operations and agencies.

The recent shutdown began at 12:01 a.m. on Saturday, January 20, 2018, after senators blocked a short-term funding bill Friday night as the prior short-term spending measure expired.   The government shutdown is not new to immigration attorneys as there have been 18 government shutdowns in modern U.S. history, lasting from one to eighteen days. The most recent government shutdown in 2013 lasted sixteen days.   

What to Expect During the Government Shutdown

Not every agency will be closed because some government functions are deemed “essential” and others are fee-supported (do not depend on government funding to operate), so employees can continue to work.   All other employees are vulnerable to furlough, or temporary unpaid leave.

Therefore, agencies supported by fees should continue to operate without major disruption, in contrast to agencies operating with essential personnel -- which will operate at a slower pace, causing some disruption in services.

Impact on Immigration Matters

Similar to what occurred in 2013, the following are agencies that may or may not be affected by the Government Shutdown:

  • E-Verify. E-Verify, Self Check, and Self Lock services suspended during the shutdown, however, the USCIS E-Verify website will remain available online to provide resources.

We expect that, similar to the 2013 shutdown, USCIS will make appropriate accommodations to help businesses maintain compliance, for example suspending the “three-day rule” associated with the E-Verify process and extending the time period during which employers may resolve Tentative Non-Confirmations (TNCs).


Despite the unavailability of E-Verify, compliance with Form I-9 requirements continues to be mandatory. Employers that use an electronic Form I-9 system that is interconnected with E-Verify will still be required to timely complete the Form I-9 portion of the employment verification process (and complete the E-Verify portion upon availability of the system).

 

  • Department of Labor (DOL).  DOL is not a fee supported agency, therefore, only “essential” government functions will be operating.

Under this agency, we have the Office of Foreign Labor Certification (OFLC) whose functions are not "excepted" (“essential”) from a shutdown and its employees would be placed in furlough status. The OFLC will not accept or process Labor Condition Applications (LCA), 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 and the PERM system, would become static and unable to process any requests or allow authorized users to access their online accounts.

H-1B visa applications require a certified Labor Condition Application (LCA). We are waiting to hear from the USCIS about accepting H-1B visa extension applications without the required certified LCAs to avoid visa holders falling into “lapse status” during the shutdown.
 

  • DOL's Office of Administrative Law Judges (including BALCA) will be unable to perform any case-related activities, including conducting hearings. Hearings that have been previously scheduled will be rescheduled once the appropriations bill or continuing resolution takes effect. Deadlines that occur during the shutdown will be suspended.

  • Department of State (DOS).  DOS will continue to issue visas, as well as provide critical services to U.S. citizens overseas, as these services are fee-funded. According to the DOS: “domestic and overseas Consular operations will remain fully operational as long as sufficient fees exist to support operations.”

  • Department of Homeland Security (DHS). DHS’s website will not be actively managed.

  • Customs and Border Control (CBP). CBP personnel is “essential” for the most part. Therefore, in general the agency will continue to operate.  

  • All Ports of Entry will remain open.

  • The Border Patrol and the Office of Air and Marine will also continue with operations.

  • The Admissibility Review Office (ARO) is open and continues to function.

  • All global entry enrollment centers are open and interviews are continuing and all Trusted Traveler programs continue to function as usual.

  • The CBP website will not be maintained during the lapse in appropriations.

  • Approximately 6,000 CBP positions, primarily held by technicians and support staff, are impacted by the lapse in appropriations.

  • Executive Office For Immigration Review (EOIR).  As with other agencies, personnel who are not considered "essential" will be furloughed. EOIR detained docket would likely be considered an essential function and would therefore be able to continue in operation.

  • The Board of Immigration Appeals (BIA) will process emergency stay requests as well as cases where the alien is detained, including case appeals, motions, federal court remands, and bonds.

  • U.S. Immigration and Customs Enforcement (ICE). ICE personnel is similar to CBP personnel, “essential” for the most part due to their law enforcement function. Therefore, ICE will continue to operate during the shutdown.

  • Student and Exchange Visitor Program (ICE SEVP).  The Student and Exchange Visitor Program’s (SEVP’s) offices will remain open. This continuation of operations is possible because SEVP is a fee-funded program and does not receive any government-appropriated funds.

  • During this time, designated school officials and F and M students must continue to meet all regulatory requirements. SEVP will remain open and available to answer any inquiries that you may have.

  • Department of Homeland Security, Office of Inspector General (DHS OIG). The majority of DHS OIG personnel is not essential, so the agency will not operate during the shutdown.

  • CIS Ombudsman. The CIS Ombudsman's Office will be closed and will not be accepting any inquiries through their online case intake system.

  • Social Security Administration (SSA). Core functions would not be affected, some Social Security Administration employees would be placed on furlough and minor services would be suspended.  Social Security and disability checks will continue to be issued.


At this time, we are not able to anticipate the full effect of the shutdown on immigration matters. However, there are certain immigration matters that will be impacted immediately. Matters that rely on DOL services, mainly H-1B/LCA and PERM cases will be affected immediately as federal services are suspended.

Other immigration matters would not be significantly affected because they can withstand delay.  Nevertheless, we urge clients to look at the specific nature of their cases and plan accordingly.

We stand ready to help analyze any cases that are time-sensitive and may suffer severe negative impact by the shutdown.  Please feel free to contact us.   Our office would also continue to monitor developments and provide timely updates.  Please subscribe to our newsletter to receive updates on this and related immigration matters.
 

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