Here is what we know so far about how this past weekend's federal government "shutdown" will affect immigration adjudications and other related matters.
As U.S. Citizenship and Immigration Services (USCIS) operations are primarily funded through user filing fees (rather than federal government appropriations), we expect the agency to continue operating as normal. During the shutdown, USCIS will continue to accept all petitions and applications, and to honor all scheduled interviews and biometrics appointments.
Unfortunately, the Department of Labor (DOL) has indicated that it will neither accept nor process any applications or other materials during the shutdown, including Labor Condition Applications (LCAs), Prevailing Wage Determination applications, or PERM applications or audit responses. The iCERT and Office of Foreign Labor Certification websites have been taken offline and will not be available until federal funding is restored.
The DOL's suspension of activities is obviously of paramount concern to many of our clients – particularly those dealing with difficult timing issues (not to mention the looming H-1B cap season). We will therefore keep you apprised of any developments as soon as they become available.
Department of State: Passport and visa processing in the U.S. and at consulates overseas will continue as long as there are sufficient fees to support operations. There does not appear to be any imminent threat of suspension of visa processing at any consulate due to the shutdown. However, this could change with little notice.
E-Verify: U.S. businesses are not currently able to access E-Verify, the internet-based system that allows employers to determine the eligibility of prospective employees to work in the U.S., during the shutdown. Please note, however, that the shutdown does not affect the requirement that employers complete a Form I-9 for each new employee within three business days of the employee's start date. If your company uses E-Verify but cannot access the system due to the shutdown, please print and complete a hard copy of the I-9 (available at www.uscis.gov/i-9) for any new hires or re-verifications. You can then enter this I-9 information into E-Verify once the system becomes available. (As was the case with the last shutdown in 2013, we expect that the E-Verify "three-day rule," in which an E-Verify case is considered late if created later than the third business day after the employee first started for pay, will be suspended to accommodate entries submitted to the system late due to the shutdown. In addition, as in 2013, employees will likely be afforded extra time to respond to E-Verify tentative non-confirmations if one was received in the days leading up to the shutdown.)
EB-5 Immigrant Investor Regional Center Program: USCIS has advised that all of its designated regional centers for the EB-5 Immigrant Investor Program will close during the shutdown, pending federal re-authorization.
We will continue to closely monitor the situation and will provide you with updates when they are available.
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.