U.S. Citizenship and Immigration Services (USCIS) Is Not Affected
USCIS operations are fully funded by filing fees paid when petitions and applications are filed, so the agency is not affected by the current federal budget situation. As a result, all USCIS operations, including the four service centers and all local offices, are up and running under normal conditions. All non-immigrant and immigrant visa petitions as well as green card and naturalization applications will continue to be adjudicated, and all scheduled green card and citizenship interviews will be held.
The Department of Labor Is Affected
As of noon on October 1, 2013, the iCERT portal and PERM websites were disabled. Notices indicating that they will be closed until the government is reopened are posted instead. This affects the following:
- PERM Labor Certifications;
- Labor Condition Applications (required for H-1B and E-3 visa applications); and
- Prevailing Wage Determination.
DOL has not indicated if any concessions will be made for employers with expiring recruitment or prevailing wages, such as the economic and other hardships to employers and their employees caused as a result of the inability to file a PERM application during the shutdown period.
Similarly, employers unable to file Labor Condition Applications (LCA) or to receive LCA certifications from DOL for H-1B workers with expiring H-1B status may also be negatively impacted. These affected employees may run out of legal status in the United States, and be forced to depart. DOL has not made any announcements regarding contingency plans in this situation. (Depending upon how long the shutdown lasts, it is conceivable that USCIS may allow H-1B applications to be filed with proof of a pending LCA in order to address the problem of expiring status documents, as has occurred in the past.)
Visa Interviews at U.S. Embassies/Consulates Abroad: Anticipate Possible Delays
U.S. consular operations overseas will remain operational as long as there are sufficient funds to support them. The State Department will continue to process applications for U.S. visas (and provide services to U.S. citizens overseas), but will apply a furlough to locally employed staff.
Social Security Applications Suspended
The Social Security Administration (SSA) will remain open during the shutdown, but will not be accepting or processing applications for new numbers or replacement cards. Employees do not need an SSN to start work, but the lack of an SSN could affect their ability to obtain a U.S. driver's license, open a bank account and obtain other benefits.
All E-Verify Operations Are Suspended
The E-Verify website and all customer service functions are closed and unavailable. While E-Verify is unavailable, it will not be possible to access E-Verify accounts. As a result, it is not possible to enroll, verify employment eligibility or make any changes to an E-Verify account. It is important to note: Because the customer service function is closed, employees will be unable to resolve Tentative Nonconfirmations (TNCs), and E-Verify Self-Check will be unavailable.
USCIS has implemented the following temporary policies for E-Verify users:
- The 'three-day rule' for E-Verify cases is suspended for cases affected by the shutdown. Additional guidance will be provided once it reopens. 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 toward the eight federal government workdays the employee has to go to the SSA or contact the Department of Homeland Security (DHS). It will provide additional time once it reopens.
- 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.
Customs and Border Protection and Immigration and Customs Enforcement
DHS designates the majority of its employees as "essential" for the "safety of human life or protection of property." As a result, operations involving passenger processing and cargo inspection at ports of entry will continue.
Immigration Courts and Board of Immigration Appeals (BIA)
Immigration courts will continue adjudicate cases where foreign nationals are detained, and all court functions that support the detained caseload. Cases for non-detained foreign nationals are being canceled and will be rescheduled once the government returns to normal operations.
The BIA is processing emergency stay requests, and cases where the foreign national is detained, including case appeals, motions, federal court remands and bonds.
If you have any questions about this Alert, please contact any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.
This article is for general information and does not include full legal analysis of the matters presented. It should not be construed or relied upon as legal advice or legal opinion on any specific facts or circumstances. The description of the results of any specific case or transaction contained herein does not mean or suggest that similar results can or could be obtained in any other matter. Each legal matter should be considered to be unique and subject to varying results. The invitation to contact the authors or attorneys in our firm is not a solicitation to provide professional services and should not be construed as a statement as to any availability to perform legal services in any jurisdiction in which such attorney is not permitted to practice.
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