Effects of Government Shutdown on Immigration Services Summarized
The shutdown of the federal government will affect certain components of the U.S. immigration system. For example, the E-Verify system is unavailable. Regulatory developments could also be delayed. The following is an overview of how the shutdown will affect various processes, based on agency statements and news reports.
U.S. Citizenship and Immigration Services: Processing of petitions and applications at USCIS is expected to continue uninterrupted because the agency is funded by user fees and does not depend on federal appropriations.
While the shutdown continues, however, E-Verify users will not be able to access their accounts. As a result, they will be unable to:
- Enroll any company in E-Verify
- Verify employment eligibility
- View or take action on any case
- Add, delete, or edit any User ID
- Reset passwords
- Edit company information
- Terminate an account
- Run reports
- View "Essential Resources"
In addition, E-Verify Customer Support and related services are closed. As a result:
- Employees will be unable to resolve Tentative Nonconfirmations (TNCs).
- Telephone and e-mail support will be unavailable. Users may send e-mails, but USCIS says it cannot respond until the agency reopens.
- E-Verify webinars and training sessions are cancelled.
- E-Verify Self-Check is not available.
USCIS said it understands that E-Verify's unavailability may have a significant impact on company operations. To minimize the burden on both employers and employees, USCIS has implemented the following policies:
- The "three-day rule" for E-Verify cases is suspended for cases affected by the shutdown. USCIS said it would provide additional guidance once it reopens. USCIS noted that this does not affect the Form I-9 requirement—employers must still complete the I-9 no later than the third business day after an employee starts work for pay.
- The time period during which employees may resolve TNCs will be extended. Days the federal government is closed will not count toward the eight federal government workdays the employee has to go to the Social Security Administration or contact the Department of Homeland Security. USCIS said it will provide additional time once it reopens.
- Federal contractors complying with the federal contractor rule should contact their contracting officers to ask about extending deadlines.
- Employers may not take any adverse action against an employee because of an E-Verify interim case status, including while the employee's case is in an extended interim case status due to the federal government shutdown. USCIS says employers should consult the E-Verify User Manual for more information on interim case statuses.
Also, USCIS's Ombudsman's Office is closed as of October 1, 2013. Additionally, case inquiries submitted online or through emailed/faxed DHS 7001 forms will remain pending until the Ombudsman resumes operations.
Systematic Alien Verification for Eligibility (SAVE) will be operational during the shutdown.
Department of Labor: The Office of Foreign Labor Certifications, which has oversight of most immigration-related processes, is effectively closed. Consequently, the Department of Labor (DOL) will not accept or process any applications or materials relating to Labor Condition Applications (LCAs), Prevailing Wage Determinations, or Applications for Permanent Employment Certification (i.e., the PERM system).
The operational status of DOL affects the ability to file petitions with USCIS that require a certified LCA (such as requests for H-1B, H-1B1, and E-3 classification). Historically, in instances where it was not possible to obtain a certified LCA, USCIS temporarily created an exemption to the LCA requirement. To date, however, no such exemption has been announced. Similarly, the DOL's status may affect the timing requirements of PERM applications. Future guidance on these issues is expected.
The DOL notes that "[i]n the event of a government shutdown, processing times in the foreign labor certification programs will be extended, and may cause delays in decisions in applications in those programs." OFLC's web site, including the iCERT Visa Portal System, is unable to process any requests or allow authorized users to access their online accounts.
Department of State: The issuance of visas, as well as related consular operations, will remain operational for the present time. However, the Department of State has indicated that if current funds are exhausted, consular services may be reduced or halted. Applicants for visas are advised to monitor the website of the consulate at which they intend to apply for the latest information.
Reports indicate that passport and visa services will continue for the present time, but there is uncertainty in the event the shutdown lasts longer. Consular operations are not currently affected but will be decided on a case-by-case basis in the event of a lapse in appropriations.
U.S. Customs and Border Protection: The Border Patrol is not shutting down. Those entering the United States with a valid visa should not encounter any issues at airports or land border crossings, and the electronic I-94 retrieval system is operational. However, individuals who seek to apply for an immigration benefit at a port-of-entry or a pre-clearance facility (such as TN and L-1 applications for Canadian nationals) are advised to confirm the operational status of the location at which they intend to apply for the latest information.
Executive Office for Immigration Review: Immigration courts nationwide are continuing to adjudicate detained cases. Court functions that support the detained caseload will continue, but other functions are suspended. For specific information about a particular court, see HERE.
The Board of Immigration Appeals (BIA) is processing emergency stay requests as well as cases where the alien is detained, including case appeals, motions, federal court remands, and bonds. The stay line is open for emergency stay calls only. All other telephone lines have been switched to closed status. The BIA Clerk's Office staff is accepting all filings and will be open Monday through Friday, from 8:00 a.m. until 4:30 p.m.
During the government shutdown, the Office of the Chief Administrative Hearing Officer will maintain its ability to issue subpoenas and accept for filing any antidiscrimination complaints that must be filed to comply with statutory deadlines.
USCIS's STATEMENT ABOUT THE E-VERIFY SHUTDOWN
SUMMARY OF DHS's PLANS
DOL's EMPLOYMENT AND TRAINING ADMINISTRATION ACTIVITIES
DEPARTMENT OF STATE'S INFORMATION ON THE SHUTDOWN
If you have any questions or concerns on how the government shutdown affects an employee's immigration process or employment eligibility verification, please contact your Alliance of Business Immigration Lawyers attorney for further guidance.
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