Immigration Impact of Potential Partial Government Shutdown

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At a glance

• If a partial government shutdown occurs after December 21, immigration benefits processing at DOL, USCIS, CBP and U.S. consulates should continue.
• E-Verify, EB-5 Regional Center, and some other USCIS immigration programs would expire if Congress fails to reach a budget agreement in time.

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The situation

As FY 2019 budget negotiations continue, a partial federal government shutdown remains possible if a spending agreement is not reached by midnight on December 21.  Though much of the government has been funded for the coming fiscal year, some agencies, including the Department of Homeland Security (DHS) and the Department of State, are operating on short-term appropriations.  Ongoing DHS budget negotiations have included debate on the funding of a southern border wall.

Though a shutdown is by no means certain, full-funding appropriations bills, including for DHS, are being actively negotiated, and an extension of existing short-term funding could occur. However, should there be a partial shutdown, the following is the expected impact on immigration operations based on the outcome of prior shutdowns in previous years. Fragomen will provide updates on ongoing developments.

Department of Labor: DOL would not be affected by a shutdown, since Congress has already passed appropriations legislation to fund the agency’s operations for FY 2019.  Processing of labor condition applications (LCAs), labor certifications and prevailing wage determinations should continue.

U.S. Citizenship and Immigration Services: As a fee-funded agency, USCIS would continue to process applications and petitions for immigration benefits, but processing delays could occur if adjudication of a 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. Appointments at USCIS local offices and Application Support Centers should not be affected by the shutdown. 

Department of State: Though FY 2019 funding for DOS has not yet been decided, U.S. consulates 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. Passport services would continue, though some passport offices could be affected if they are located in federal buildings that are closed due to a shutdown.

Customs and Border Protection: As essential functions, inspection operations at U.S. borders and ports of entry should continue. CBP would continue to process immigration applications at the border.

Immigration and Customs Enforcement: ICE enforcement activities and operations of the Student and Exchange Visitor Information System (SEVIS) would continue as essential functions.

E-Verify: Congressional authorization for E-Verify will expire if no extension legislation is passed.  Employers would not be able to initiate E-Verify queries or resolve tentative non-confirmations, and would not be expected to meet the usual E-Verify deadlines until the program is reauthorized. However, 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 would remain subject to Form I-9 obligations and deadlines as usual.

EB-5 Regional Center and Other Expiring Immigration Programs: Congressional authorization for the EB-5 Regional Center, Conrad 30 and Non-Minister Religious Worker programs will also expire unless extension legislation is passed by December 21.  USCIS and U.S. consulates would not accept permanent residence applications under the EB-5 Regional Center Program or the Non-Minister Religious Worker Program until they are reauthorized by Congress. Until the Conrad 30 program is reauthorized, DOS and USCIS would not consider waiver applications from J-1 foreign physicians who have received a recommendation from their state of employment for a waiver of the two-year home residency requirement.

Social Security Administration: SSA should continue to process applications for Social Security Numbers or replacement cards during a shutdown.

SAVE System: SAVE -- the USCIS database used by federal and state agencies to verify an applicant’s immigration status when processing applications for benefits -- would remain in operation.

This alert is for informational purposes only. If you have any questions about the effect of the shutdown on your organization, please contact your designated Fragomen representative.