Dec 27, 2018
Immigration Consequences of Government Shutdown
Joshua H. Rolf
Following a flurry of failed deals to keep the government open during the holiday season, the Federal Government shut down as of 12:00AM on December 22, 2018. At the center of the funding fight: the President’s demand that any Continuing Resolution to fund the government include $5 billion for building his long-promised wall on the U.S. – Mexico Border. There is a lot to unpack with respect to the shutdown –How did we get here? How long will this last, and what are each sides’ politics moving forward? How does the closure affect government workers and those seeking government services? This post will cover the latter topic -namely, how does the shutdown affect immigration processes?
In some respects, the answer to this question is “not much.” In fact, many elements of the immigration system will proceed almost the same as if the government were open. For example, USCIS will continue to accept and adjudicate petitions and applications for immigration benefits, as these processes are filing-fee-funded. Since they do not rely on government appropriations, USCIS officers will continue reviewing cases that come before them during this period, and USCIS Field Offices – including Asylum Offices – remain open. Likewise, U.S. Consulates abroad will continue to process Visa Applications, at least for now, since filing fees also fund a large portion of these operations. However, we would not be surprised to see delays on this front, especially if the shutdown persists.
Unlike other years, the U.S. Department of Labor has received funding for the entirety of Fiscal Year 2019 (i.e. through September 30, 2019). As such, Labor Condition Applications (“LCAs”) and Labor Certifications (“PERMS”) will continue uninterrupted during the shutdown, and the Department of Labor will continue accepting new LCAs and PERMs throughout this period.
Foreign nationals traveling to the United States will continue to be met by Customs and Border Protection Officers, who will inspect their credentials before granting admission. The same goes for Canadian Citizens applying for admission in TN or L status at a U.S. Port of Entry; once again, though, there may be delays with such processes if ports of entry are short-staffed during the shutdown.
Immigration and Customs Enforcement (“ICE”) remains operative because it is an essential function. Likewise, Student and Exchange Visitor Information System (“SEVIS”) continues operating during this time.
Immigration Courts will remain open and running for all detained cases. However, for non-detained cases, Immigration Courts have notified respondents that their hearings will be rescheduled following the government’s resumption of normal operations.
Several other facets of the immigration system have ceased functioning without government funding and/or authorization. For example, E-Verify – which allows employers to electronically confirm the employment authorization of new employees – is inoperative during the government shutdown. Accordingly, though employers participating in E-Verify may complete a Form I-9 for new hires, they must be prepared to run E-Verify checks once the government re-opens.
Even more, several programs that require Congressional authorization have sunset with the government’s lapse of funding. Most notable amongst these is the EB-5 Regional Center Program – which you can read about on our Investment immigration web site. The Conrad 30 Program that grants a limited number of J-1 Waivers for H-1B physicians also ceased with the government shutdown, as did the Non-Minister Religious Worker program.
We will continue to monitor how the government shutdown affects the immigration system, and will update this post as appropriate. Of course, if you have any questions regarding how the government shutdown has affected or could affect your existing or potential case, please do not hesitate to contact our office.