FAQs on Immigration Processing During the Federal Government Shutdown

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
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As of the evening of October 3, 2013, Congress had not yet reached an agreement to fund the federal government. As a result, some federal agencies that rely solely on government funding cannot provide services and have been partially shut down. Those agencies that receive funding from fees or other government sources may remain open, but service delays should be expected.

Both temporary and immigrant visa processing is affected by the shutdown, and, until Congress reaches an agreement on financing the government, various immigration processes will be unavailable and/or delayed. Below, are responses to frequently asked questions regarding how the shutdown is affecting visa processing. We will update the guidance as new information becomes available. 

PETITIONS FILED AT USCIS

My immigration paperwork is pending or is going to be filed with U.S. Citizenship and Immigration Services (USCIS). Will it be processed during the shutdown?

USCIS is funded by filing fees and will continue to process petitions and applications. However, USCIS will likely suffer delays since other government agencies subject to the shutdown must act on your immigration process (for example, the U.S. Department of Labor (DOL). Based on past shutdowns, it is expected that USCIS will allow for the submission of H-1B petitions without a certified Labor Condition Application (LCA). This should allow for beneficiaries to continue employment for extensions and change of employer petitions.

PERM

My employer has initiated a PERM application (for labor certification for immigrant visa) on my behalf. Will that process be impacted by the shutdown?

Yes. The DOL has suspended processing of PERM applications. Prevailing wage requests and PERM applications cannot be filed at this time and pending processes are suspended. Processing delays will likely continue after government financing is restored. It is likely that the PERM backlog will increase substantially.

H-1B, H-2, AND E-3

My employer has initiated one of these visa processes for me. Will it be impacted by the shutdown?

Yes. Because the DOL has suspended processing, any visa that requires an LCA  or prevailing wage determination will be affected. As noted above, in the past USCIS has been flexible in accepting petitions even when the DOL could not provide the underlying LCA certification. However, in the case of E-3s, the inability to obtain a certified LCA will prevent beneficiaries from applying for an E-3 visa at a U.S. Consulate, which is usually preferred since E-3s are ineligible for portability or premium processing.

VISA APPLICATIONS AT U.S. CONSULATES ABROAD

Can I apply for a visa and if my visa application is pending will it be processed?

U.S. Consulates will continue to process visa applications while monitoring available funding. The U.S. Department of State and its consulates are funded partially based on fees generated by visa applications and other appropriations, but it is not clear how long these funds will remain available. Visa applicants are encouraged not to delay and pursue consular processing.

SECURITY CHECKS

What if I have applied for my visa at a U.S. Consulate but my case is in administrative processing subject to security clearance?

Since security checks are administered by various federal government agencies that are affected by the shutdown, security checks may be delayed.

CANADIAN BORDER APPLICATIONS

Will TN and L-1 visa applications be accepted by U.S. Customs and Border Protection (CBP) at the border?

Currently all border ports of entry remain open. CBP continues to process Canadian nonimmigrant petitions at the border. If the shutdown begins to impact these petitions, employers may consider filing petitions with the USCIS services centers as an alternative to a border petition.

I have plans to fly to the United States. Will I have any problems arriving?

CBP has confirmed that airport CBP officers are deemed to be essential personnel needed to process flight arrivals. At this time there is no change in operations as a result of the government shutdown.

Will I be able to obtain my I-94 number after entering the United States?

Yes, the website used to obtain I-94 numbers remains operational.

SOCIAL SECURITY NUMBERS

I just arrived to work in the United States, and my employer advised me to apply for a social security number. Will I be able to apply for one during the shutdown?

The U.S. Social Security Administration will not accept applications for new social security numbers during the shutdown. Although an employee may begin working without a social security number, an employee’s ability to obtain other benefits without a number may be limited depending on the organization providing that benefit (for example, banks, state departments of motor vehicles, etc.).

STATE BENEFITS

If I need to apply for a driver’s license, will the shutdown affect my application?

Yes, in many cases it will. State governments that use federal databases to verify a foreign national‘s immigration status may have reduced access to those databases during the shutdown. Therefore, you may experience delays or suspensions of service from state agencies during the shutdown, including in the processing of driver’s license applications.

As noted above, USCIS may decide to accept H-1B extension petitions without a certified LCA for purposes of extending employment authorization, but USCIS will still require a certified LCA to approve the H-1B. Some applicants may be unable to renew their driver’s licenses in states that will only renew licenses based on USCIS H-1B approval notices.

E-VERIFY

Will I be able to access E-Verify for new employees?

No, the E-Verify system is not operational due to the government shutdown. USCIS has thus suspended the “three-day rule” and extended the time period during which employers may resolve Tentative Non-Confirmations (TNCs).

BACKLOGS

After the shutdown is over, how quickly will my case be processed?

Depending on how long the shutdown lasts, it could take weeks for government agencies to work through backlogs. Delays should be expected well after a budget agreement is reached.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ogletree, Deakins, Nash, Smoak & Stewart, P.C. | Attorney Advertising

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