Impact of Government Shut-Down on Immigration Processing
On January 20, 2018, the federal government entered into a partial shutdown. Generally, agencies that receive funding from filing fees or other government sources are expected to remain open, but are expected to experience service delays. Immigration processes and agencies will be impacted as explained below.
U.S. Citizenship and Immigration Services
U. S. Citizenship and Immigration Services (USCIS) and its field offices will remain open. According to USCIS.gov, “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.”
USCIS is funded in significant part by filing fees from users, and many of its activities are deemed “exempt” from closure during a shutdown.
USCIS will continue to process most petitions and other applications for immigration benefits. However, certain petitions or applications that require DOL involvement, may be impacted, such as H-1B visa petitions requiring a certified Labor Conditional Application from U.S. DOL; I-140 petitions requiring a certified ETA9089 form; or H-2 visa petitions requiring certified Form ETA9141.
Certain types of filings are either suspended or otherwise affected by the shutdown, including EB-5 (immigrant investor) Regional Center Programs, the Conrad 30 Program for J-1 physicians, and green cards for non-minister religious workers.
USCIS has announced that E-Verify, Self Check, and Self Lock services are temporarily suspended during the shutdown; however, the USCIS E-Verify website will remain online to provide resources.
USCIS is expected to make appropriate accommodations to help businesses maintain compliance, for example, by 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).
U.S. Department of Labor
Since DOL does NOT receive filing fees for its immigration-related functions, the shutdown will result in a cessation of a large portion of the DOL’s operations. The OFLC has ceased processing all applications, including Prevailing Wage Determinations, LCA’s, PERM applications and H-2A/B applications. The ICERT system has been de-activated and you will be unable to email them or submit applications via ICERT.
U.S. Department of State
U.S. Department of State (DOS) entities will continue to process visa applications and hold visa interviews. They will operate until their respective balances are insufficient to continue. During a lapse in appropriations, the DOS draws upon remaining available appropriations balances, trust funds, other permanent appropriations, fees, and a working capital fund to continue operations as long as such funding is available.
Consular operations will remain operational as long as there are sufficient fees to support operations. U.S. Consulates will continue to process visa applications. However, because consulates receive federal funding in addition to funding through fees, it is unclear how long consulates would be able to sustain visa services following a government shutdown.
If a passport agency is located in a government building affected by the government shutdown, the passport agency may become unsupported.
U.S. Customs and Border Protection
The federal government deems U.S. Customs and Border Protection (CBP) officers to be “essential personnel” who are largely exempt from ceasing operations due to their law enforcement function and role in securing the nation’s borders.
Port operations should not be significantly impacted by a shutdown. Travelers will likely be able to request entry, be inspected, and be admitted as usual with minimal deviation from normal practices.
U.S. Immigration and Customs Enforcement
U.S. Immigration and Customs Enforcement (ICE) is also exempted from ceasing operations due to their law enforcement function.
ICE will continue its enforcement and removal activities as usual.
Foreign Students and Exchange Visitors
ICE oversees the Student and Exchange Visitor Program (SEVP). Because SEVP is funded by fees, it should not be impacted by the shutdown.
If you have questions about how this shut-down may affect your immigration process, please contact a Whiteman Osterman & Hanna LLP immigration attorney.