Potential Government Shutdown Effect on Immigration Agencies
There has been much speculation in the news that the federal government is headed for a shutdown starting October 1, 2023, if Democrats and Republicans fail to agree on annual spending or reach a continuing resolution to temporarily fund the federal government.
When this has happened in the past, the contingency plans for each federal agency have varied. The White House keeps an updated page on its website with each agency’s plan for a federal government shutdown.
Here is an overview of the immigration agencies:
- U.S. Citizenship & Immigration Services (USCIS). USCIS is funded by user fees and does not depend on federal funds for its operations. Processing of all applications and petitions is expected to continue. The only exception is if a petition or application requires the certification of another affected federal agency, such as an H-1B petition that requires certification by the Department of Labor (DOL).
- Department of Labor (DOL). The Office of Foreign Labor Certifications (OFLC) oversees most immigration processes and is part of the DOL, which has typically been closed during government shutdowns. DOL will likely not accept or process any Labor Condition Applications (LCAs), Prevailing Wage Determinations, or Applications for Permanent Employment Certification (PERM).
Additionally, as mentioned above, the operational status of DOL impacts USCIS petitions that require a certified LCA (H-1B, H-1B1, and E-3 visa petitions). Historically, USCIS would temporarily allow an exemption to the LCA requirement for status maintenance filings. Similarly, the DOL’s status may impact the timing requirements of PERM applications. In the past, DOL has extended any deadlines that fell during a government shutdown.
- Department of State (DOS). Consular operations and visa issuance may or may not be operational during a shutdown. DOS maintains a small reserve of funds for 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.
- Customs and Border Protection (CBP). Borders will remain open and CBP will be operational, so individuals entering with a valid visa should not encounter any issues with ports of entry. However, individuals who plan to apply for an immigration benefit at a port-of-entry or a pre-clearance facility (such as TNs and L-1s for Canadian nationals) will need to check the operational status of the location at which they intend to apply for the latest information.
- E-Verify. E-Verify 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 in E-Verify. The three-day rule for E-Verify cases will be suspended, and the time 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. The government will release additional information on how to address situations that cannot adhere to traditional E-Verify deadlines if or when a shutdown occurs. This disruption does not affect I-9 obligations.
It is important to check each agency’s contingency plan as the situation unfolds because as mentioned, shutdown operations have varied with each presidential administration.
Details:
- Klasko Immigration Law Partners, LLP, Client Alert (Sept. 14, 2023)
- Agency Contingency Plans, The White House, whitehouse.gov
USCIS Issues Update on DACA Decision
U.S. Citizenship and Immigration Services (USCIS) issued an update about the partial stay of the recent Deferred Action for Childhood Arrivals (DACA) decision by a Texas federal judge. On September 13, 2023, District Court Judge Andrew Hanen declared the Biden administration’s revised version of the DACA program illegal. However, Judge Hanen also kept in place a partial stay for DACA recipients who received their status before July 16, 2021.
USCIS states that current grants of DACA and associated employment authorization documents (EADs) will remain valid until they expire unless otherwise terminated. USCIS will continue to accept and process renewal requests. As for initial DACA requests, USCIS will continue to accept these, but the agency will not process the applications.
Individuals who currently have valid DACA and related EADs do not have to submit a request for DACA or employment authorization until it is time for renewal.
Details:
- USCIS News Alert (Sept. 18, 2023)
- DACA information page, USCIS.gov (Updated Sept. 18, 2023)
CIS Ombudsman Provides Tip Sheet on How F-1 Students Can Avoid Form I-765 Delays
On September 18, 2023, the U.S. Citizenship and Immigration Services (USCIS) Ombudsman’s Office released a tip sheet for F-1 international students on how to avoid delays with adjudications on Form I-765, Applications for Employment Authorization.
The tip sheet includes suggestions for students to check USCIS’ website before submitting their Form I-765 for relevant updates, ensuring that their designated school official (DSO) has provided a properly completed and signed Form I-20, Certification of Eligibility for Nonimmigrant Student Status for submission with the Form I-765, and applying online if possible, as USCIS receives online applications faster. Additional recommendations include submitting Form I-765 within 30 days (if applying for Post-Completion Optional Practical Training) or 60 days (if applying for a STEM Optional Practical Training Extension) after their DSO has entered the appropriate recommendation into their Student and Exchange Visitor Information System (SEVIS) record, and making sure that students update their mailing address with both USCIS and the U.S. Postal Service.
Details:
- DHS, CIS Ombudsman Tip Sheet (Revised Sept. 2023)
Electronic Signatures Now Acceptable for STEM OPT Students
Immigration Customs Enforcement (ICE) and the Student and Exchange Visitor Program (SEVP) recently updated Form I-983 (Training Plan for STEM OPT students) to remove the requirement for wet signatures. According to the ICE bulletin released about this form change, SEVP will accept electronic signatures in the following formats:
- Electronic signatures produced with software programs
- Digitally reproduced signatures, such as a scanned image of a physical signature
Additionally, students can now send their completed Form I-983 to their designated school official via email or a secure platform, such as a school portal.
Details:
- ICE Bulletin, AILA Infonet (Sept. 20, 2023)
Department of Homeland Security Proposes Rule to Modernize H-1B Regulations
On September 19, 2023, the Office of Management and Budget (OMB) received a proposed rule from the Department of Homeland Security (DHS) to amend regulations governing H-1B specialty occupation workers and F-1 students who are beneficiaries of timely filed H-1B cap-subject petitions.
DHS proposes to revise regulations relating to the employer-employee relationship and flexibility for start-up entrepreneurs, implement new requirements and guidelines for site visits in connection with petitions filed by H-1B dependent employers whose basic business information cannot be validated through commercially available data, and provide flexibility on the employment start date listed on the H-1B petition in limited circumstances. The proposed rule also includes details on addressing cap-gap issues for F-1 students changing to H-1B status, reducing misuse and fraud in the H-1B registration system, and clarifying the requirement that an amended or new petition be filed where there are material changes, including streamlining notification requirements relating to certain worksite changes, among other provisions.
After OMB reviews the proposed rule, it will be published in the Federal Register for public comment.
Details:
- Klasko Immigration Law Partners, LLP, Client Alert (Sept. 22, 2023)
- Reginfo, Pending Review (Sept. 19 2023)
October 2023 Visa Bulletin is Published
On September 15, 2023, the Department of State released the October 2023 Visa Bulletin, indicating which green card applications are eligible to move forward based on their initial filing date. For employment-based filings, USCIS has directed the public to use “Chart B,” the Dates for Filing chart in the October Visa Bulletin.
The Visa Bulletin affects those born in countries where there are more green card applications filed than green cards available for the fiscal year. Those born in India and China are subject to backlogs and have to wait for their priority date to become current so that they may file an Adjustment of Status, the final stage in the green card application.
The EB-1 category is “current” for all countries except for India and China. Indian nationals with priority dates of July 1, 2019, and earlier are eligible to move forward. Chinese nationals with priority dates of August 1, 2022, can move forward with their applications.
EB-2 Indian nationals with priority dates of May 15, 2012, and EB-2 Chinese nationals with priority dates of January 1, 2020, can move forward.
In the EB-3 category, Indian nationals with priority dates of August 1, 2012, and Chinese nationals with priority dates of September 1, 2020, are eligible to file their Adjustment of Status applications for their green cards.
Details:
USCIS Updates Policy Guidance for Extraordinary Ability and Outstanding Professor or Researcher EB-1 Immigrant Visa Classifications
U.S. Citizenship and Immigration Services (USCIS) announced on September 12, 2023, that it is updating the USCIS Policy Manual to clarify the types of evidence the agency will evaluate to determine eligibility for extraordinary ability and outstanding professor or researcher EB-1 immigrant visa classifications.
An extraordinary ability EB-1 immigrant visa classification does not require a job offer, and it is filed by a person who has extraordinary ability in the sciences, arts, education, business, or athletics, which has been demonstrated by sustained national or international acclaim, and whose achievements have been recognized in the field through extensive documentation.
An outstanding professor or researcher EB-1 immigrant visa classification is filed by a U.S. employer on behalf of a professor or researcher who is internationally recognized as outstanding in a specific academic area to work in a tenured or tenure-track position or a comparable position to conduct research.
USCIS explained that the new clarifying guidance enumerates and describes the evidence, or qualified comparable evidence, that meets the relevant evidentiary criteria for these petitions. Additionally, USCIS clarified the totality of the circumstances approach used by officers to evaluate the relevant evidentiary criteria, as well as outlined a list of positive factors that officers should consider when adjudicating these matters. While the examples of relevant evidence and factors have a focus on science, technology, engineering, or mathematics (STEM) fields, USCIS states that the list of examples is non-exhaustive and that while the listed factors are more relevant to STEM fields, the guidance applies to all extraordinary ability persons and outstanding professors or researchers.
Details:
- USCIS alert (September 12, 2023).
- Policy Manual, Volume 6, Part F, Chapter 2 – Extraordinary Ability (Current as of September 12, 2023)
- Policy Manual, Volume 6, Part F, Chapter 3 – Outstanding Professor or Researcher (Current as of September 12, 2023)
Department of Labor Updates O*NET Database
The Department of Labor, Employment and Training Administration released the O*NET 28.0 Database and updated its site on September 5, 2023, making updates to 90 occupation codes. Among these updates were revisions to occupation descriptions (including tasks, skills, work activities, etc.); minimum requirements for training, work experience, and education; job zones; and alternate job titles. Significantly, the occupation code 15-1211, Computer Systems Analysts was downgraded from Job Zone Four: Considerable Preparation Needed, to Job Zone Three: Medium Preparation Needed. As a result of this change, practitioners should expect a higher risk for PERM business necessity audits and H-1B specialty occupation requests for additional evidence for positions classified under the Computer Systems Analysts occupation.
The next O*NET update is expected in November 2023.
Details:
- O*NET Resource (Sept. 5, 2023).
Bipartisan Congressional Letter Requests Relief for Skilled Visa Holders
Congressmen Raja Krishnamoorthi (D-IL) and Larry Bucshon, M.D. (R-IN) recently sent a letter to Secretary of State Antony Blinken and Department of Homeland Security Secretary Alejandro Mayorkas requesting executive action to provide relief to highly skilled workers, allowing the filing of employment-based immigrant visa applications by marking all dates as “current” across all chargeability areas for employment-based green card cases in the October 2023 Visa Bulletin.
The letter, co-signed by a bipartisan group of 56 other members of Congress, outlined the precedent and authority for such action and highlighted the compelling government and economic interests in retaining these highly skilled professionals within the U.S. labor force, particularly during this time of increased opportunities for STEM workers to relocate to Canada. The action would bring relief and security to thousands of foreign nationals and their families by securing their ability to maintain work authorization, get promoted, and launch businesses. Under the current backlogs, these foreign nationals and their families are stuck in limbo waiting for the next step in obtaining their green cards beholden to their current job and employer. According to the letter, if the United States does not address these shortcomings, it is at risk of losing critical talent to countries that have already taken steps to prioritize immigration opportunities for highly skilled workers.
In the press release on Congressmen Krishnamoorthi’s website, Aman Kapoor, president of Immigration Voice was quoted as saying, “The entire basis for this problem is a discriminatory immigration system that requires Indian nationals to have to wait 200 years for a green card while people from 150 other countries have no wait at all. While this larger problem cannot be fixed without legislation, our organization of over 100,000 members is absolutely thrilled with the bipartisan effort of Congressmen Krishnamoorthi, Bucshon and 56 other members of Congress to call on the Biden Administration to adopt this change.”
Details:
- Letter to the Biden Administration, Congressman Raja Krishnamoorthi website (July 28, 2023).
- Press Release, Congressman Raja Krishnamoorthi website (July 28, 2023).
State Dept. Conducting Proof of Concept Testing for Digital Visa Authorization
On September 8, 2023, the U.S. Department of State’s (DOS) Bureau of Consular Affairs announced it is developing and testing a digital visa authorization (DVA) capability instead of the traditional process of printed visas placed in applicants’ passports. The U.S. Embassy in Dublin is conducting proof of concept testing with a small number of K-1 visas. If successful, DOS plans to expand the DVA to other visa classifications and other posts abroad. There was no timeline indicated in this announcement.
U.S. Customs and Border Protection’s (CBP) Document Validation program will notify airlines digitally when a traveler has valid travel credentials, including a DVA. DOS will provide more information and updates as they become available.
Details:
- Travel.state.gov Visa News, U.S. Department of State (September 8, 2023)
Klasko News
FIRM NEWS
Ron Klasko and Alison Li were both quoted in EB5 Investors Magazine articles for their expertise and knowledge of the EB-5 visa program.
IN THE NEWS
William A. Stock
Bill Stock was quoted in this New York Times article on his expertise on crime and deportation in immigration law.
H. Ronald Klasko
Ron Klasko was quoted in this EB5 Investors Magazine article for his prior experience with government shutdowns.
William A. Stock | Sarah Holler
Bill Stock and Sarah Holler’s article “How A Gov’t Shutdown Would Affect Immigration Processing” was published in Law360.
Alison Li
Alison Li was quoted in this EB5 Investors Magazine article on the uncertainties that still remain about the filing requirements for form I-956G and its deadlines.
RECENT SPEAKING ENGAGEMENTS
Elise A. Fialkowski
On September 28, Elise Fialkowski presented to the University of Penn in a PPA FNC and ISSS joint presentation entitled Transition to a Green Card Workshop.
UPCOMING SPEAKING ENGAGEMENTS
H. Ronald Klasko | Alison Li
On October 4, Ron and Alison will speak in this EB5AN event on Regional Center Compliance Update on Form I-956g FY 2023.
ICYMI: RECENT BLOG POSTS AND ALERTS
DHS Announces Plans to Add Israel to the List of Designated Countries for the Visa Waiver Program
In this client alert, Sarah Holler informs us of the Department of Homeland Security’s recent announcement of its intent to add Israel as a Visa Waiver Program designated country.
How a Gov’t Shutdown Would Affect Immigration Processing
In this article, Bill Stock and Sarah Holler address government shutdown speculations and cover how the shutdown would affect government agencies.
Department of Homeland Security Proposal to Amend Regulations Governing H-1B Workers and F-1 Students Under Review
In this client alert, Bill Stock addresses the DHS proposed rule to amend H-1B requirements for H-1B specialty occupation workers and F-1 students with timely filed H-1B Cap subject petitions.
Expected Effect of Government Shutdown on the U.S. Immigration System
In this client alert, Bill Stock informs us of recent news reports that Republicans and Democrats might not reach an agreement on a “Continuing Resolution,” ending in a government shutdown.
Educating International Students on Work Options in the United States
In this article, Natalia Gouz takes a dive into international students’ education on work options and visa types in the United States.
FIRM FEATURE
Last month, KILP had its very first in-office craft show along with our monthly social hour. View more pictures on our Instagram (@klaskoimmigrationlaw).
Stay Connected! Subscribe to our blog and follow us on Twitter, Facebook, Instagram, and LinkedIn.
This newsletter was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Klasko Immigration Law Partners is an active member.
