Reminder - Preparing for a Possible Federal Shutdown

At a glance

If Congress is unable to pass a spending bill or stopgap measure by Friday, January 19:

• Immigration functions at the Department of Labor would be completely suspended;

• USCIS and State Department application processing would continue but could be delayed;

• E-Verify, the EB-5 Regional Center program and other immigration programs would expire if they are not reauthorized or temporarily extended by the deadline.

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The situation

Debate over the FY 2018 budget and relief for DACA beneficiaries has intensified in Washington, increasing the possibility of a federal government shutdown and the suspension or delay of some immigration functions if a spending agreement or stopgap measure cannot be reached by January 19.

The January 19 deadline also affects several expiring immigration programs, including E-Verify and the EB-5 Regional Center permanent residence program for foreign investors. The statutory authority for these programs will expire if Congress does not reauthorize or temporarily extend them by the deadline.

Federal immigration functions during a shutdown

Immigration operations would likely be affected as follows in the event of a shutdown:

Department of Labor: Foreign labor certification services are likely to be suspended as non-essential functions. Online application systems would be taken offline. No PERM applications, labor condition applications (LCAs), prevailing wage determination requests (PWDRs) or applications for H-2A/H-2B temporary labor certification could be filed online or processed.

U.S. Citizenship & Immigration Services: USCIS should continue to process applications and petitions for immigration benefits during a government shutdown, though processing delays could occur if adjudication of the case is dependent on support from government functions that are suspended – for example, a security clearance from an agency that is affected by the shutdown. Because DOL LCA operations would be suspended, employers planning H-1B, E-3 or H-1B1 extensions or changes of employer - for which a DOL-certified LCA is required - may be unable to file if they do not already have an LCA in hand.

Department of State: DOS should continue to process visa applications as long as filing fees remain available to fund consular operations. If a shutdown is lengthy and fee funding is depleted, the agency could suspend visa processing or limit it to emergency cases only.

Customs and Border Protection: Inspection functions at U.S. borders and ports of entry would remain in operation. CBP would likely process immigration applications at the border, such as applications for initial TN or blanket L status submitted by Canadian nationals.

Social Security Administration: SSA would not process applications for Social Security Numbers or replacement cards during a shutdown. This could delay an individual’s ability to obtain benefits and services for which an SSN is required, such as driver’s licenses and bank accounts.

SAVE System: SAVE is the database used by government agencies – including state motor vehicle departments – to verify an applicant’s immigration status when processing applications for benefits.  SAVE would remain in operation during a shutdown.

Impact on expiring immigration programs

Unless reauthorized or temporarily extended by January 19, the following immigration programs will expire:

• E-Verify: Employers who participate in E-Verify would not be able to submit employment verification queries or resolve tentative nonconfirmations. However, employers would still be subject to Form I-9 obligations.
• EB-5 Regional Center Program: The government would cease to accepting filings under the EB-5 Regional Center program.
• Conrad 30 and Non-Minister Religious Worker Programs: The government would cease accepting applications under the Conrad 30 waiver program for foreign medical graduates who will work in underserved areas of the United States and permanent residence filings under the Special Immigrant Non-Minister Religious Worker program.

Fragomen is closely following the appropriations debate and will issue further client alerts as developments occur. 

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