Recent news reports have speculated that Republicans and Democrats might not be able to reach agreement on annual spending bills or else a “Continuing Resolution” that would keep the government funded after the end of the current fiscal year (September 30, just two weeks away).
While it is still too soon to know whether a shutdown will happen and how long it will last if it does, we are aware that clients may be concerned about the effect of a shutdown on immigration processing. Each time the federal government has experienced a shutdown, the exact plan for which agencies continue to provide services and which will suspend services has varied between Administrations. Based on prior shutdowns, however, the following is an overview of how the shutdown will likely affect various processes.
U.S. Citizenship & Immigration Services: The processing of petitions and applications at USCIS is expected to continue uninterrupted, as the agency is funded by user fees and is not dependent on federal appropriations. Employees needing extension of their temporary status, or file USCIS-administered steps of the green card process, should be able to continue filing and obtaining those adjudications during any shutdown that occurs, unless their extension requires a certification from the Department of Labor, as discussed below.
Department of Labor: The Office of Foreign Labor Certifications, which has oversight over most immigration-related processes filed with the Department of Labor, is normally closed during government shutdowns. Consequently, DOL will neither accept nor process any applications or materials relating to Labor Condition Applications (LCAs), Prevailing Wage Determinations, or Applications for Permanent Employment Certification (i.e. the PERM system).
The operational status of DOL impacts the ability to file petitions with USCIS that require a certified LCA (such as requests for H-1B, H-1B1 and E-3 classification). Historically, in instances where it was not possible to obtain a certified LCA, USCIS temporarily created an exemption to the LCA requirement to allow filings that are needed to maintain status. Similarly, the DOL’s status may impact the structured timing requirements of PERM applications, but historically DOL has extended any deadlines that fell during a government shutdown. We anticipate receiving future guidance on these issues and will continue to provide updates.
Department of State: the issuance of visas, as well as related Consular operations, may or may not remain operational during the shutdown. The Department of State does maintain a small reserve of unallocated funding that can be used to allow continued operations; however, the Department of State has reduced or halted visa issuance during prior shutdowns. Employees with international travel plans that would require them to obtain a new visa stamp while abroad should monitor the situation closely and may need to cancel their travel plans or risk being unable to return to the United States for several months.
Customs & Border Protection: individuals entering the U.S. with a valid visa should not encounter any issues at airports or land border crossings, and the electronic I-94 retrieval system is operational. CBP is normally treated as an essential law enforcement function that is required to continue working during a shutdown. However, individuals who seek to apply for an immigration benefit at a port-of-entry or a pre-clearance facility (such as TN and L-1 applications for Canadian nationals) will need to confirm the operational status of the location at which they intend to apply for the latest information.
E-Verify: the E-Verify system is unavailable during a government shutdown. As a result, E-Verify employers will not be able to verify employment eligibility or take any other action that requires access to an E-Verify account. The three-day rule for E-Verify cases is suspended, and the time period during which employees may resolve Tentative Nonconfirmations will be extended. Employers are not permitted to take any adverse action against an employee whose query is in an extended interim case status due to the government shutdown. Once the information is released, we will provide further information on how to address situations that cannot adhere to traditional E-Verify deadlines. Importantly, the interruption of E-Verify does not affect the Form I-9 obligation. If you have any questions or concerns on how the government shutdown affects an employee’s immigration process or employment eligibility verification, please contact your Klasko Law attorney for further guidance.
Please contact your Klasko Law attorney with any questions regarding this client alert.
The material contained in this alert does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
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