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.
