Sequestration Likely to Affect Immigration Services

On March 1, 2013, the Budget Control Act, including sections mandating across-the-board budget cuts to federal agencies (known as “sequestration”), went into effect. The sequester is likely to negatively impact immigration processing and related services provided by federal departments and agencies that regulate the immigration function, including the U.S. Department of State (DOS), the U.S. Department of Homeland Security (DHS), and the U.S. Department of Labor (DOL), as outlined below. This in turn means that employers and foreign nationals can expect significant delays in immigration adjudications, border inspections, and visa issuances.

  • The DOS: Visa Adjudication Delays. The DOS, which oversees the adjudication of U.S. visas at consular posts, will be impacted since the sequester will likely mean that there will be fewer officers processing visa applications, resulting in significant delays in the visa adjudication process. Foreign nationals will need to plan ahead and anticipate the possibility of considerably longer wait times for visa appointments and delays in visa issuances.
  • The DHS—Includes Three Agencies Involved in: Immigration Benefits Processing, Foreign Travel, and Worksite Enforcement.
    • U.S. Citizenship and Immigration Services (USCIS): Increased Application Processing Times. The impact of sequestration on USCIS, which oversees the adjudication of immigration benefits, will be less significant since the agency’s budget comes mainly from filing fees collected for processing petitions and applications rather than from the U.S. Congress. On the other hand, the budget cuts to Customs and Border Protection and Immigration Customs Enforcement, USCIS’ sister agencies, may induce a spillover effect on USCIS operations, resulting in slower processing times.
    • Customs and Border Protection (CBP): Longer Lines at Airports and Ports of Entry. CBP, which conducts inspections at U.S. ports of entry and is responsible for border security, will likely be most impacted by the sequester. Cutbacks in funding and reduced staffing will increase waiting and processing times and affect security at airports and land ports of entry for those traveling to the United States. Individuals traveling outside the United States should plan ahead for longer wait times and anticipate possible delays during inspection upon re-entering the United States.
    • Immigration Customs Enforcement (ICE): Reduction in Operations and Investigations. The sequester could require ICE, the investigative arm of DHS, which performs worksite investigations of possible I-9 violations and is responsible for enforcing the immigration laws, to reduce its current detention and deportation operations. ICE has already released some lower-risk foreign nationals from detention facilities, placing these individuals on methods of supervision less costly than detention. Employers could also see a drop in worksite investigations and delays in pending investigations.
  • The DOL: Slowdown in Prevailing Wage Determinations, LCA, and PERM Processing. Major budget cuts and a substantial decrease in staffing will affect various programs within the DOL, which processes prevailing wage determinations, PERM labor certifications, and labor condition applications (LCAs). This could mean backlogs and increased processing times for these applications, including LCAs associated with H-1B petitions. Despite the sequester and related diminished funding, it is hoped that the DOL will comply with current regulations requiring the agency to certify the LCA, which is a prerequisite to a properly-filed H-1B petition, within seven days of filing. However, in light of possible LCA processing delays, advance preparation, particularly during the H-1B cap season, is even more critical. Employers must take into consideration possible slower processing times to guarantee the timely approval of the LCA and the ability to file the H-1B petition on March 29, 2013. The Ogletree Deakins attorney with whom you normally work can help you quickly initiate new H-1B petitions.

The exact impact of the sequester on immigration-related services and programs remains to be seen. Ogletree Deakins is monitoring developments and will provide updates as more information becomes available.

Andrew W. Merrills is a shareholder in the Raleigh office of Ogletree Deakins, and he chairs the firm’s Immigration Practice Group. Justin S. Coffey is an associate in the Atlanta office of Ogletree Deakins, and Nicole Brooks is an Immigration Client Resources Manager in the Raleigh office of Ogletree Deakins.