Partial Federal Shutdown Imminent; Immigration Benefits Processing Largely Continues

At a glance

• E-Verify, the EB-5 Regional Center program and two other immigration programs are set to expire after midnight tonight as a result of the impasse over the FY 2019 federal budget. 
• Immigration benefit processing at USCIS and U.S. consulates will continue because those functions are supported by application fees, but delays are possible.
• Labor certification and labor condition application functions will not be affected because the Department of Labor has been fully funded for FY 2019.
• Budget negotiations are expected to continue this weekend.

A closer look

Though Congress and the White House have agreed to continue negotiations in an attempt to resolve an impasse over the FY 2019 budget, the House and Senate have adjourned for the evening, meaning a partial government shutdown is set to occur after midnight.  Budget negotiations are expected to continue this weekend.

In the wake of the partial shutdown, immigration functions should remain largely in operation, with some exceptions, as described below. 

Program expirations

Congressional authorization for the following immigration programs will expire after midnight tonight:

• E-Verify;
• The EB-5 Regional Center Program;
• The EB-4 Non-Minister Religious Worker Program; and
• The Conrad 30 Program.

USCIS processing

USCIS immigration benefits processing will continue since that function is largely funded by filing  fees. Employers and foreign nationals may continue to submit most types of petitions and applications, including petitions for immigrant and nonimmigrant workers and applications for adjustment of status. However, USCIS will not process EB-5 Regional Center Program petitions or applications until that expiring program has been reauthorized by Congress. Similarly, until the Conrad 30 program has been reauthorized, USCIS will not consider waiver applications from J-1 physicians  who have received a recommendation from their state of employment for a waiver of the two-year home residency requirement.

Visa processing at U.S. consulates

Processing of nonimmigrant and most immigrant visas at U.S. consulates will continue as long as filing fees remain available to fund consular operations. If a shutdown is lengthy and fee funds are depleted, visa processing could be delayed or limited to urgent medical or humanitarian cases only.

However, U.S. consulates will not process EB-5 Regional Center Program applications until that expiringprogram has been reauthorized by Congress.  

Department of Labor immigration functions

The processing of labor certifications, labor condition applications and prevailing wage determinations will continue as usual, because Congress has passed appropriations legislation to fund DOL operations for FY 2019.

Border operations

Inspection functions at U.S. borders and ports of entry will remain in operation as essential functions. U.S. Customs and Border Protection will continue to process immigration applications at the border.

Immigration enforcement

U.S. Immigration and Customs Enforcement will continue to perform its enforcement activities and to operate the Student and Exchange Visitor Information System (SEVIS).

E-Verify

The E-Verify program will expire after midnight. Employers will not be able to initiate E-Verify queries or resolve tentative nonconfirmations, and will not be expected to meet the usual E-Verify deadlines until the program is reauthorized by Congress. In the interim, employers must not take any adverse action against an employee whose employment eligibility verification cannot be confirmed in E-Verify due to the shutdown.



All employers remain subject to the same I-9 obligations. The expiration of the E-Verify program does not affect the deadlines that are applicable to Form I-9 completion.

U.S. passport processing

Passport agencies will continue operating in the U.S. as long as sufficient fees remain available for operations. However, if a passport agency is located in a government building affected by the lapse in appropriations, that facility may become unavailable.

Other government benefits

The Social Security Administration will continue to accept and process applications for Social Security numbers and replacement cards.

The SAVE system will continue operating. SAVE is the federal database used by government agencies – including State Departments of Motor Vehicles – to verify the immigration status of foreign nationals applying for benefits. Though foreign nationals could experience delays in driver's license applications and renewals for other reasons related to the shutdown, SAVE verifications should not be affected.

Fragomen will provide continuing updates on the immigration impact of the shutdown and budget negotiations.

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.