The Effect of the Government Shut Down on Immigration Matters

By Grant Godfrey and Donald Parker

Like the proverbial needle that is playing a broken record, we are again in a situation where Congress has waited until the last minute to try to pass a stopgap spending bill that will keep the government funded. If such a bill is not signed into law by midnight on Friday, January 19th, 2018, the government will be “shut down” until funding has been secured. The two major political parties appear to be at an impasse, with the Deferred Action for Childhood Arrivals (“DACA”) program posing the major stumbling block. The government was last shut down for approximately two weeks in October 2013 by a group of Republicans led by Ted Cruz attempting to defund or delay portions of “Obamacare.” The last shutdown had a major effect on government services that were not fee-based. Approximately 800,000 government workers providing non-fee-based services were furloughed during the last shutdown, as they were deemed to be “non-essential employees”. The only exception where non-essential employees were allowed to continue to work was in order to protect life or property. Fee-based government services on the other hand were mostly unaffected.

Given the continuing environment of political brinksmanship, it is worth revisiting the effect that a government shutdown would have on major government agencies involved in immigration matters, and on the immigration compliance obligations of HR or hiring officials.  The following is brief overview of main government agencies affected and the ripple impact of a shutdown (if history serves as any precedent):

U.S. Citizenship & Immigration Services (“USCIS”) – USCIS is the agency that adjudicates and administers petitions and applications for immigration benefits. USCIS charges a fee for these petitions and applications.  As such, USCIS would continue to accept and adjudicate applications and petitions during the shutdown. However, a shutdown could cause disruption to certain types of work visa petitions, such as for employment in or extensions of employment authorization of E-3, H-1B1, and H-1B status. These work visas must be supported by an underlying Labor Condition Application (ETA Form 9035/9035E) certified by the Department of Labor.  As noted below, the Department of Labor does not provide fee-based services.  In the last government shutdown, the Department of Labor had stopped processing Labor Condition Applications (“LCAs”).  Should this occur in a new shutdown, any disruption in the processing of LCAs could adversely impact the ability of workers to secure approval in one of these categories or extension of their status.

E-Verify, which is for the most part a voluntary program that allows businesses to verify the eligibility of new hires to work in the United States, would also go offline during any shutdown. E-Verify registered employers and users would not be able to access their accounts. During the last shut down, USCIS stated that the “three-day rule” for E-Verify was suspended for employers who utilize the system (though employers were still required complete the Form I-9 within three days of hire). Additionally, the period during which employees were required to resolve Tentative Nonconfirmations (“TNCs”) was extended, and days that the federal government was shut down did not count towards the eight federal government workdays the employee has to clear up TNCs with the Social Security Administration (“SSA”) or the Department of Homeland Security (“DHS”). During the shutdown, employers could not take any adverse action against an employee because of an E-Verify interim case status, including while the employee’s case was in an extended interim case status.

Customs & Border Protection (“CBP”) – CBP is primarily tasked with securing the border and it inspects everyone who legally enters the U.S. Most of the CBP functions are essential and are for the purpose to protect life or property. During the last government shutdown, ports of entry remained open – although some had reduced staffing and as a result there were longer wait times to enter the U.S.

Department of Labor (“DOL”) – The DOL is not fee-based, and its immigration-related functions, including accepting and processing Labor Certification (“PERM”) applications, Prevailing Wage Requests and LCAs, are not essential or for the purpose of protecting life or property. As a result, all DOL immigration-related functions would be closed for the duration of the shutdown. Note that the websites that accept these applications became static during the shutdown so while users could navigate to the home pages, they did not allow users to access their accounts.

Department of State (“DOS”) – The DOS is responsible for managing international relations, including processing visa applications at embassies and consulates in foreign countries. Consular visa services, which are fee-based, would generally not be affected by the shutdown. However, any visa services that are performed in a government building that was otherwise closed would be stopped for the duration of the shutdown. One other important function that the DOS is also in charge of administering is the Green Card quota system. During the last shutdown, the DOS appeared to continue to authorize the issuance of new Green Cards for the duration of the shutdown.

We are monitoring the situation and will send further alerts on major developments. As always, you’re invited to contact any of our immigration attorneys to discuss your specific needs.

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