United States: Shutdown Watch: Programs And Processes To Be Affected

At midnight on Jan. 20, 2018, the U.S. government will run out of funding, forcing a shutdown of many of its non-essential services. This accordingly would have severe impacts on immigration processes, of which our clients and partners need to be mindful.  While a Continuing Resolution (CR) that would extend operations through February 18 has passed the House of Representatives, at this hour that particular bill's terms appear highly unlikely to pass the Senate. Presently, discussions remain active and ongoing, and it is not clear whether or not Congress will be successful at reaching an agreement before current funding runs out tonight. As immigration functions are, of course, handled by a number of federal agencies, many clients are concerned about what impact a potential government shutdown may have on current and upcoming processes.

Here's what we would expect: First, unlike past government shutdowns, this one would have an added wrinkle: several 'pilot' immigration programs require periodic reauthorizations, and are now tied to the CR. In other words, while it's not necessarily the case that these programs would need the CR for funding, rather they require reauthorization for their ongoing existence. These include:

  • EB-5 Regional Center Program – We've covered what would happen during an EB-5 lapse extensively last April, which involves pending petitions to be held in abeyance while new Regional Center-related filings could not be accepted. Consulates further cannot issue visas to investors who used a Regional Center to have their I-526s approved. Importantly, an EB-5 lapse would not affect any direct projects, nor the filing of Form I-829s.
  • E-Verify – E-Verify requires government funding to operate and thus would be affected by the shutdown even if its reauthorization was not tied to the CR. During a 2013 shutdown, USCIS published applicable guidance. This time, however, the program also requires reauthorization. What remains less clear is how myriad state laws requiring E-Verify usage as part of their licensure process will be affected should the program expire. Employers should expect a lot of confusion come Monday morning amidst a shutdown and lapse.
  • Conrad 30 Waivers – Foreign doctors seeking a waiver of the J-1 two-year home residency requirement cannot avail themselves of these state waivers without reauthorization, and thus would need another basis to avoid the residency requirement prior to getting an H-1B visa or Green Card.
  • Special Immigrant Religious Workers – Form I-360s and nonimmigrant R-1 filings cannot be made for these religious workers without reauthorization. Based on USCIS guidance, it is not clear whether affected R-1s would be out of status during a lapse. Notably, religious ministers are not affected by the sunset.

Based on past shutdowns (as well as agency funding structures), it is likely the agencies associated with most common immigration processes will be impacted as follows:

  • USCIS – The agency should remain operational given that the agency is funded by filing fees and does not rely on appropriations. Most services, such as petition adjudication, will not be affected. A notable exception is E-Verify, as discussed above.
  • DOL – Unlike USCIS and DOS, the immigration-related processes overseen by the Department of Labor, including the processing of Labor Condition Applications (LCA) and Labor Certifications, are not supported by fees, and thus, based on past experience, it is likely that the agency would not continue to process these applications during a government shutdown. Certain types of visa filings with USCIS or DOS which require an LCA (H-1B, H-1B1, E-3) may be impacted if the DOL stops processing these applications. During the 2013 shutdown, USCIS offered accommodations for filings which were impacted in this manner, but it should not be assumed that a similar protocol will be followed in the future.
  • DOS – The effects on visa and passport services remain very uncertain during this time. While fee-funded, a Department of State Spokesperson was asked during a recent press conference what preparations the agency is making in light of a shutdown, and what effect it will have on these services. According to the Spokesperson: "We have not made a decision on that just yet."
  • CBP – Customs and Border Protection personnel are considered to be "essential" personnel and will not be furloughed in the event of a government shutdown. However, it is possible that CBP's ability to adjudicate certain types of applications may be impacted due to funding concerns.

It is important to note that the information given above is speculative in nature, and is based on past government shutdowns, as well as additional information regarding how specific agencies are funded and operate. There is no single "roadmap" for how a shutdown will impact a given agency or process. Further, as discussed above, how the government will handle lapses in several programs have little precedent.

We have covered the political background fueling Congressional and Executive deadlock. We remain hopeful that lawmakers will find today a solution to accord status to the hundreds of thousands of families affected by the Administration's rescinding of DACA and Temporary Protected Status and to extend operations to avoid such a severe disruption in immigration processes. We will keep our readers apprised of new developments in the hours and days ahead.

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