By Elizabeth Chatham

How Does the Government Shutdown Impact Immigration Services?

The effect of the government shutdown on immigration services will vary widely among the different immigration-related agencies. For those services that do not require appropriation of federal funds, operations will continue largely uninterrupted. Other services administered by “non-essential” departments will be massively reduced as the operation of entire agencies is suspended. Immigration officials in these agencies will be among the approximately 800,000 federal employees furloughed during the shutdown. So how is immigration impacted by the shutdown? The biggest impact will be seen by employers, with the suspension of the E-Verify program, as well as the Department of Labor for H-1B Labor Condition Applications (LCA), Prevailing Wage Determinations (PWD), and all aspects of H-2B visa petitions and PERM Labor Certification filings.

United States Citizenship and Immigration Services (USCIS)

United States Citizenship and Immigration Services (USCIS) will likely be among the least impacted immigration agencies, as it is largely funded through application fees as opposed to appropriations. Only about 300 of the approximately 18,000 USCIS employees will be furloughed during the shutdown.  USCIS will continue to process immigrant visa applications and petitions for immigration benefits, though these may be subject to additional delays.  The CIS Ombudsman’s Office will be closed and will not be offering case or application assistance.

Certain immigrant visa petitions that require a certified Labor Condition Application (LCA), such as E-3 and H-1B visas, may be adversely affected as the Department of Labor, which ordinarily processes LCAs, will not be doing so during the shutdown. USCIS has not yet announced whether they will temporarily accept or extend these visas without a certified LCA. This will affect extensions of H-1B visa applications as well as H-1B Change of Employer petitions, and may have a direct impact on the ability of businesses to continue to employ affected foreign workers, as well as cause economic hardship to the business itself for the loss of these skilled workers’ expertise.

One key USCIS service that will not be accessible during the shutdown is E-Verify, an internet-based system that allows businesses to verify the work eligibility of their employees. Employers will not be able to enroll in E-Verify, edit, manage or otherwise access existing E-Verify accounts, take action on any existing E-Verify cases or confirm work eligibility for prospective employees.  E-Verify customer support will also be unavailable, as well as E-Verify webinars and other compliance training services. Potential employees will not be able to use E-Verify Self Check to confirm their own employment eligibility.

As a result of these limitations, employers will not be able to resolve pending Tentative Nonconfirmations (TNCs) produced by employee records submitted to E-Verify. USCIS has confirmed  they will extend the ordinary time period to resolve a TNC, and that the eight Federal Government workdays during which employees ordinarily must resolve a TNC will not accrue on days that the Federal Government is shutdown. Employers still may not take adverse action against an employee because of a TNC or other E-Verify interim case status, and this includes the period during which the employee’s interim case status is extended due to the Federal Government shutdown.

In order to minimize the impact and burden of the E-Verify shutdown to employers and employees, regulations requiring employers enrolled in E-Verify to submit a new employee within three days of hiring will be suspended. Some federal contracts may even be extended to allow contractors to comply with the Federal Acquisition Regulation final rule, which requires federal contractors to use E-Verify to verify work eligibility. Employers are still, however, required to complete the I-9 employment eligibility verification form.

Department of Labor

Immigration services tied to the Department of Labor (DOL) will be severely curtailed by the government shutdown. Within the DOL is the Office of Foreign Labor Certification (OFLC), which ordinarily accepts and processes Labor Condition Applications, Applications for Temporary Employment Certifications, Applications for both Temporary and Permanent Employment Certification, and Applications for Prevailing Wage Determinations. OFLC employees will be furloughed throughout the shutdown and OFLC will not accept or process these applications or make prevailing wage determinations.

The OFLC’s website, which ordinarily allows users to access the iCert portal and Program Electronic Review Management (PERM) system, will not be accessible during the shutdown. Individuals will not be able to create iCert accounts, submit applications, access existing iCert accounts, or utilize the PERM Labor Certification system.

Elsewhere in the DOL, the Office of Administrative Law Judges will be largely suspended. Any scheduled immigration hearings are cancelled, and will not be rescheduled until a new appropriations bill takes effect.

Other Agencies

The effect of the shutdown on other immigration services will vary. The Department of State (DOS) has confirmed that they will continue to issue visas through global U.S. Embassies, as like the USCIS the majority of their operational costs are covered by fees.  However, visa issuance may be impacted if the issuing agency is located within a government building affected by the lapse in appropriations funding.

Acting Commissioner Thomas WInkowski has confirmed that Customs and Border Patrol (CBP) will also maintain ordinary operations. All U.S. Ports-of-Entry, both through air and on land, will remain open. CBP will continue to accept and process both TN and L visas for nonimmigrant professionals. Some CBP technicians and support staff will be furloughed, causing visa holders to experience increased delays. Travelers admitted to the U.S. subject to deferred inspection due to lack of documentation may also experience delays in resolving discrepancies. The CBP website will not be updated during the shutdown.

In the Department of Justice (DOJ), the Executive Office for Immigration Review (EOIR) will furlough approximately 70% of its employees. All functions are suspended except for cases of individuals in detention. Case appeals and federal remands before the Board of Immigration Appeals are similarly suspended, with only emergency stay requests and cases of individuals in detention allowed to continue. In keeping with this reduction in services, EOIR and BIA staff will not be available to process eRegistration applications by attorneys and accredited representatives.

Immigration and Customs Enforcement’s (ICE) detention and enforcement operations will continue. However ICE trial attorneys will pare down their work to focus only on cases involving detained individuals. As a fee-funded program, ICE’s Student Exchange and Visitor Program (SEVP) will also remain open.

The suspension of immigration services during the government shutdown affects individual immigrants, as well as employers concerned with sponsored immigrant employees and work authorization compliance requirements. For more information on how the government shutdown impacts your immigration status or compliance, please contact Elizabeth Chatham at 480-344-4056 or echatham@davismiles.com