Some Immigration Operations Suspended After Federal Shutdown Takes Effect

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At a glance

• DOL immigration operations were suspended and the E-Verify and EB-5 Regional Center programs expired early Saturday after Congress failed to reach an agreement on the FY 2018 budget and relief for DACA beneficiaries.

• Case processing at USCIS, CBP and U.S. consulates continues.

• The Senate is expected to vote today on a measure to fund the government through February 8.

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The federal shutdown enters its first business day with some immigration functions suspended, as negotiations continue on the FY 2018 budget and relief for beneficiaries of the DACA program. The Senate is expected to vote today on a temporary measure to fund the government through February 8.

The following is the latest information on case processing and other immigration operations. Fragomen will provide updates as developments occur.

Department of Labor: DOL's foreign labor certification operations are suspended for the duration of the shutdown. No PERM, labor condition application (LCA), temporary labor certification or prevailing wage determination requests are being accepted. The PERM and iCERT systems were taken offline shortly after 12:01am EST on Saturday and will remain inaccessible until federal operations resume.

U.S. Citizenship and Immigration Services: USCIS continues to process applications and petitions for immigration benefits, though 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. Because DOL LCA operations are suspended, employers may be unable to file H-1B, E-3 or H-1B1 extensions or changes of employer unless they already have a valid certified LCA in hand.  Appointments at USCIS local offices and Application Support Centers are not affected by the shutdown. 

Department of State: DOS will process visa applications as long as filing fees remain available to fund consular operations. If the shutdown is lengthy and fee funding is depleted, the agency could suspend visa processing or limit it to emergency cases only. As noted above, because DOL LCA operations are suspended, applicants may not be able to obtain an E-3 or H-1B1 visa unless their employer already has a valid certified LCA to support the visa application.  Passport services continue, though some passport offices may be affected if they are located in federal buildings that are closed due to the shutdown.

Customs and Border Protection: Inspection functions at U.S. borders and ports of entry remain in operation. CBP continues 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) continue.

E-Verify: Congressional authorization for E-Verify has expired. 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. 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 remain subject to Form I-9 obligations and deadlines as usual.

Other Expired Immigration Programs: Congressional authorization for the EB-5 Regional Center, Conrad 30 and Non-Minister Religious Worker programs has expired.  USCIS and U.S. consulates will 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 will 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 will not process applications for Social Security Numbers or replacement cards during the 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 remains 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.