Update: At midnight the federal government shut down. We will keep employers updated as details of immigration related closings and the negotiations in Congress become available.
Seyfarth Synopsis: As we wait to hear the fate of yet another temporary extension to continue funding the government after midnight on Saturday January 20th – employers should know how a shutdown may impact processing of immigration petitions and immigration programs.
Department of Homeland Security (DHS)
U.S. Citizenship and Immigration Services (USCIS)
As a fee based agency, there will be minimal impact on USCIS operations. This means USCIS will continue to process applications and petitions for immigration benefits, with some processing delays possible.
There are four programs that are not fee based and will be affected by a government shutdown.
- E-Verify, USCIS' free, internet-based system that allows businesses to determine the eligibility of their employees to work in the United States, will be inaccessible during a shutdown. Employers must continue to complete the Form I-9 for new hires in compliance with the law and will need to have a plan to create cases in E-Verify when the system becomes available again.
- The Regional Center EB-5 Program will be affected – not because of funding but because extension of the "Regional Center" component of EB-5 investments is tied to the funding bill. Specifically, clients who have invested in EB-5 regional center sponsored projects will not be able to file I-526 petitions during this time. They will however be able to file other petitions.
- The Conrad 30 allows doctors to apply for a J-1 Waiver. The USCIS notes that the shutdown only affects the date by which the J-1 doctor must have entered the United States; it is not a shutdown of the Conrad 30 program entirely; and
- The Special Immigrant Nonminister Religious Worker program applications will be suspended during the shutdown.
Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP)
ICE, including Homeland Security Investigations (HSI) should be fully operational with only a limited number of non essential personnel furloughed. CBP will also continue working; they will retain most of their staff as their work is also considered essential to national security at the ports and borders. It is expected that TN and L-1 petitions for Canadian nationals would continue to be adjudicated at the border.
Department of Labor (DOL)
Office of Foreign Labor Certification (OFLC) employees, who fall under the umbrella of DOL, are considered non-essential and would likely be placed in furlough status during a government shutdown. OFLC would neither accept nor process any applications or related materials, including H-1B and E-3 Labor Condition Applications (LCAs), applications for prevailing wage determinations, applications for temporary employment certification (H-2Bs), applications for permanent employment certification (PERM applications), or PERM audit responses.
Department of State (DOS)
Visa issuance will likely continue, at least temporarily. It is expected that domestic and overseas Consular operations will remain fully operational as long as sufficient fees exist to support operations. However the DOS has been impacted by prior government shutdowns and clients traveling internationally should plan accordingly if they intend to renew a nonimmigrant visa.
Department of Justice – Executive Office for Immigration Review (EOIR)
EOIR's detained docket is typically considered an essential function and would continue to operate. The Immigrant Employee Rights (IER) staff will be furloughed, but we note that IER offered limited assistance during the 2013 shutdown with a skeleton staff answering only urgent emails for one hour daily.
Seyfarth Shaw's Business Immigration Group is closely monitoring this developing situation. If you should have any questions about how the government shutdown might affect your workforce, please reach out to your contact person at Seyfarth Shaw LLP. We will be happy to address your questions.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.