How the Government Shutdown Impacts Immigration

by Stinson Leonard Street
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Stinson Leonard Street

As Congress has been unable to pass a federal spending bill, the federal government has temporarily shut down. We are closely monitoring the situation and will provide updates as information becomes available. Our recommendation is to continue to work with your immigration team and move forward on initiated projects. The shutdown will impact certain aspects of processing immigration cases and the manner in which the various government agencies operate.

Below is an overview of how a shutdown may impact immigration-related agencies, as provided by the American Immigration Lawyers Association. Generally, if the government shuts for budgetary reasons, all but "essential" personnel are furloughed and are not permitted to work.

E-VERIFY: The E-Verify internet based system will be unavailable during the shutdown. Employers must still complete the Form I-9 on a timely basis.

USCIS: The U.S. Citizenship and Immigration Service (USCIS) is a fee-funded agency and will continue to process applications and petitions. Certain non-essential staff will be furloughed and processing delays are anticipated. H-1B, H-1B1, and E-3 filings may not be submitted without a certified Labor Condition Application (LCA) from the DOL, and the DOL will be suspended during the shutdown and will not process LCAs. In the past, USCIS has relaxed its rules and it is anticipated an announcement is forthcoming to address extension, change of employer, and lottery filings.

DOS: Visa and passport operations are fee-funded and should not be impacted by a lapse in appropriations, but operating status and funding will need to be monitored closely. If visa operations are affected, consular posts will generally announce any limited services. Visa interviews and stamping appointments will continue.

CBP: Inspection and law enforcement personnel are considered "essential.” Ports of entry will be open; processing of applications filed at the border should not be impacted. International business travelers should be admitted into the United States following normal admission procedures.

ICE: ICE enforcement and removal operations will continue, and ICE attorneys will typically focus on the detained docket during a shutdown. The ICE Student and Exchange Visitor Program (SEVP) offices are unaffected since SEVP is funded by fees.

DOL: The Office of Foreign Labor Certification (OFLC) will cease processing all applications in the event of a government shutdown, and personnel will not be available to respond to e-mail or other inquiries. OFLC's web-based systems, iCERT and PERM, will be inaccessible, and BALCA dockets will be placed on hold. This will directly impact Labor Condition Applications needed for H-1B, H-1B1, and E-3 petitions. Any responses for H-2A/H-2B notice of deficiencies and requests for further information, PERM audits, intent to revoke, or supervised recruitment may be impacted. We anticipate that the DOL will provide instruction to stakeholders.

CIS Ombudsman: The DHS Office of the CIS Ombudsman will close and not accept any inquiries through its case intake system.

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.

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