Tuesday, October 1, 2013

Impact of Government Shutdown on Immigration Agencies

From the Council for Global Immigration, 10/01/2013

After months of negotiation between the administration and the two branches of Congress, no deal has been reached to keep the federal government open.  As such, federal immigration agencies are scrambling to implement a government shutdown.  While the situation is fluid and we have seen conflicting information from various sources, we have verified the following information through conversations and correspondence with government officials in order to ensure you have the most recent information.   Please let us know if your experience with the agencies differs from the information below and we will provide updates as the implementation of the shutdown continues to develop.
Department of Homeland Security
The DHS contingency plan for the shutdown can be found here.
USCIS Adjudications
USCIS is mostly fee funded, and therefore the impact on adjudications will be minimal compared to most immigration processes.  In fact, out of the 12,558 USCIS employees, all but about 300 will be reporting to work during a shutdown.
This means that processing at USCIS will be relatively normal, other than processes affected by other agencies (for instance, no new LCAs will be issued by Department of Labor for H-1Bs).
E- Verify
Unlike the rest of USCIS, E-Verify is not fee funded and will be inaccessible during a shutdown, including employment verification, resolution of Tentative Nonconfirmations (TNCs) and Self Check.   USCIS has provided the following guidance:
  • The 'three-day rule' for E-Verify cases is suspended for cases affected by the shutdown. We’ll provide additional guidance once we reopen. This does NOT affect the Form I-9 requirement—employers must still complete the Form I-9 no later than the third business day after an employee starts work for pay.
  • The time period during which employees may resolve TNCs will be extended. Days the federal government is closed will not count towards the eight federal government workdays the employee has to go to SSA or contact DHS. We will provide additional time once we reopen.
  • For federal contractors complying with the federal contractor rule, please contact your contracting officer to inquire about extending deadlines.
  • Employers may not take any adverse action against an employee because of an E-Verify interim case status, including while the employee’s case is in an extended interim case status due to a federal government shutdown (consult the E-Verify User Manual for more information on interim case statuses). 
Customs and Border Protection
Most CBP functions will continue, as most CBP staff are considered essential, but adjudication of TN and blanket L applications by Canadian citizens would stop during a government shutdown. 
Immigration and Customs Enforcement
ICE will retain most of its staff because they are considered essential.   We do not expect any major issues with enforcement.
CIS Ombudsman
The CIS Ombudsman’s office will be closed during a government shutdown.
Department of Labor
The Office of Foreign Labor Certification (OFLC) notice regarding the shutdown can be found here
OFLC will essentially shut its doors during a shutdown.  This means no processing of labor certifications, LCAs or prevailing wage determinations during a shutdown.  We also now know that employers and attorneys will not even be able to log into the PERM and iCERT websites during a shutdown.  We are pushing for grace periods in situations such as recruitment expiration while the agency is closed.
Department of State
In previous situations where a shutdown was looming, we were told that a shutdown would basically mean cessation of consular affairs, visa processing and passport issuance altogether, except for certain narrow exceptions such as humanitarian exceptions.
With this shutdown, however, the Department of State appears to have a temporary solution but the details are unclear.  The official statement from the Department of State is:
Consular operations domestically and overseas will remain 100% operational as long as there are sufficient fees to support operations. However, if a passport agency is located in a government building affected by a lapse in appropriations, the facility may become unsupported. The continuance of consular operations in such instances will be treated on a case-by-case basis by the Under Secretary for Management.
We were able to confirm yesterday with the Department of State's Bureau of Consular Affairs that visa issuance will continue at least temporarily.  We do not have confirmation at this time as to the alternative source of funding or how long it will last.
SEVIS is fee funded and we have not heard any indication that it will be affected by a shutdown.  We will keep you up to date if this news changes.
Department of State guidance on the shutdown can be found here.
Department of Justice
Office of the Special Counsel

The hotline for the Office of the Special Counsel will not be available to the public during a shutdown. Some attorneys working on litigation will work limited hours.