The Government shut-down resulting from Congress’ inability to pass an appropriation measure or continuing resolution will have varied impacts on employers and individuals who require visa applications, and immigration processing at the several agencies with responsibility for the administration of the immigration laws. Several agencies have issued statements as to which operations will continue as essential services and which offices will be shuttered. This information is based in part upon those statements as well as the practices during past closures. However, processing of different components of the immigration applications may change as agencies struggle with competing responsibilities and of course, depending upon how long this impasse continues.
U.S. Citizenship & Immigration Services (USCIS)
Because the USCIS is a “fee-based” agency, and receives fees to support its operations, most of the current functions of the USCIS will continue. Petitions and applications will continue to be accepted, and the USCIS will continue to issue adjudications on pending petitions and applications. While some of the processing may slow as the agency adjusts to the shut down, we don’t anticipate a significant interruption in USCIS operations.
One notable exception is E-Verify, which is not funded by user fees, and will be unavailable during the closure. While employers will not be able to process new employees through E-Verify within three days as required by the rules, the Form I-9 can still be completed as required. When E-Verify functionality returns, employers should process all new employees hired during the period of the shut down.
U.S. Custom and Border Protection (USCBP)
Border operations and inspections are considered essential, and will not be closed. Travel is not expected to be interrupted.
Department of Labor
The Department of Labor administers several offices critical to employers and immigrants. However, the DOL offices dedicated to the administration of immigration laws are not deemed essential and will close beginning today. These offices include the Office of Foreign Labor Certification, which receives and processes PERM applications. The PERM system, operated on-line, will not function during the shut-down. This means that new cases cannot be filed, existing cases will not be processed, and the agency will not accept the response for cases in which an audit notice has been issued. All processing of PERM cases is on hold until funding is restored.
Similarly, the system that processes the Labor Condition Application (LCA), known as iCert, will also cease operations. The LCA is also filed electronically and generally takes seven calendar days to process, but new LCA applications will not be accepted and pending cases will not be processed. Because the LCA is required to process an H-1B petition or E-3 visa application (treaty based visa for a specialty occupation for Australian citizens), unless the LCA has already been certified, employers are barred from processing H-1B petitions for new employees or to extend the status of existing employees.
New requests or pending requests for a prevailing wage determination to support a PERM application will also wait until the government funding is restored.
Executive Office for Immigration Review (EOIR)
The EOIR, generally known as the Immigration court system, will also close most operations during the shut-down. Immigration Courts determine the right of individuals to remain in the United States in removal (deportation) hearings. The office in Cleveland, typical of EOIR offices across the country, has designated one Immigration Judge to hear cases pertaining to detained individuals but the docket for individuals who have posted bond will be placed on hold until the funding is restored.
Department of State
We have received conflicting information concerning the continuation of consular services at the Embassies and consulates abroad. During past governmental shut-downs, the State Department limited consular services to matters of life and death, including interviews and issuing visas at consulates abroad. In prior years, Visa Office officials have stated that the business meeting which may be “really, really important” is not a matter of life and death. However, it appears that visa applications will continue to be processed, as least in the short term, based upon at least partial funding through the application fees. We anticipate that routine applications for employment visas such as H-1B, L-1 or E visas will continue to be processed, although appointments may take longer to schedule. Each post will be a little different and the best information can be located on the individual consulate’s website.
There has also been conflicting information on the processing of passports. Because passports are also based upon fees, the State Department will continue to issue passports. However, at least some passport agencies are located in larger government facilities that will be closed. Thus, while we expect passports will continue to be processed, there may be gaps or delay in service resulting from the government closure.
As the closure continues, the State Department has announced that it will monitor funding sources and expenditures and adjust services appropriately.
The most critical interruption of services to employers and individuals relates to LCA and PERM applications filed with the Department of Labor. These applications will not be processed until Congress passes an appropriation measure or a continuing resolution. Because the LCA is the first step to prepare an H-1B petition for foreign national employees, no processing of H-1B cases can begin until funding is restored. If the closure lasts for a long period of time, this could become a critical problem for individuals whose non-immigrant status will expire shortly. The USCIS will continue to accept and adjudicate petitions for cases in which the LCA has already been issued. Because the USCIS relies upon user fees and not Congressional appropriations, most of its operations will continue uninterrupted. However, foreign nationals who are abroad and need a visa to enter the U.S. will also need to delay travel until Congress provides operating funds for the State Department.