Many questions are arising in light of government shutdowns. Below is a synopsis of potential effects on immigration related cases:
U.S. Citizenship & Immigration Services: the processing of petitions and applications at USCIS is likely to continue uninterrupted, as the agency is funded by user fees and is not dependent on federal appropriations.
Department of Labor: the Office of Foreign Labor Certifications, which has oversight over most immigration-related processes, is likely closed. If so, DOL will neither accept nor 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 impacts 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 impact the structured timing requirements of PERM applications.
Department of State: the issuance of visas, as well as related Consular operations, typically remains operational. However, if the Department of State indicates that current funds are exhausted, Consular services may be reduced or halted. Applicants for visas should monitor the website of the Consulate at which they intend to apply for the latest information.
Customs & Border Protection: individuals entering the U.S. with a valid visa ordinarily will not encounter any issues at airports or land border crossings, and in most instances 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) should confirm the operational status of the location at which they intend to apply for the latest information.
E-Verify: the E-Verify system is usually unavailable during the government shutdown. If so, E-Verify employers will not be able to verify employment eligibility or take any other action that requires access to an E-Verify account. In such instances, the three-day rule for E-Verify cases is typically suspended, and the time period during which employees may resolve Tentative Nonconfirmations is likewise ordinarily extended. Employers are may be in risk of violation if they take any adverse action against an employee whose query is in an extended interim case status due to the government shutdown. Absent specific direction from the federal government, the interruption of E-Verify does not affect the Form I-9 obligation.
