January 23, 2018

How a Federal Government Shutdown Affects U.S. Employment-Based Immigration

After a brief federal government shutdown over the weekend, the Senate and the House voted on January 22, 2018, on a temporary spending bill that will fund the government until February 8, 2018. The President signed the bill Monday night, and all agencies that had been closed resumed regular operations on January 23, 2018.

The list below outlines how another government shutdown would affect business immigration work.

Department of Labor: During a shutdown of the federal government, the Office of Foreign Labor Certification (OFLC) would not be able to accept or process any applications it receives, including Labor Condition Applications (LCAs), Applications for Prevailing Wage Determination, Applications for Temporary Employment Certification or Applications for Permanent Employment Certification (PERM applications). OFLC's website, including the iCERT System, would be unavailable. With the H-1B cap filing opening up again on April 1, 2018, companies should plan to get LCAs filed as soon as possible in case an agreement cannot be reached by February 8.

U.S. Citizenship and Immigration Services: Because USCIS is funded by user fees, USCIS would remain open and would continue to accept and process applications.

E-Verify: Employers may not create E-Verify cases or access their accounts while the government is shut down. The requirement that E-Verify cases be created within three business days is suspended. During a shutdown, employees cannot resolve TNCs and so the timeline for employees to resolve TNCs is extended. Employers may not take any adverse action against an employee because an E-Verify case is in an interim status. Note that the unavailability of E-Verify does not change the requirement for employers to complete Form I-9 no later than the third business day following an employee’s first day of work for pay

Department of State: DOS would continue to process passport applications and provide U.S. citizen services, though passport offices in federal buildings affected by the shutdown could be closed. Visa processing at U.S. Consulates would continue until their current budgets are depleted.

Customs and Border Protection: Most CBP Inspection and Enforcement officers are considered to be essential staff and would continue working through a shutdown. Ports of entry would remain open, but processing of applications filed at the border (L-1, TN, etc.) could be affected.

Immigration and Customs Enforcement: ICE enforcement and removal operations would continue. The Student and Exchange Visitor Program (SEVP) would remain open as this office is funded by user fees.

Executive Office for Immigration Review: As with other agencies, court personnel who are not considered "essential" would be furloughed. EOIR has indicated that the detained docket would likely be considered an essential function and would therefore be able to continue in operation. During the 2013 shutdown, EOIR continued to accept court filings, even in non-detained cases.

CIS Ombudsman: The DHS Office of the CIS Ombudsman would be closed and will not accept any inquiries.

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