What to Expect During the Federal Shutdown: Updated Information for Employers and Foreign Nationals

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At a glance

• As the federal shutdown continues, most immigration functions remain in operation.
• U.S. consular functions are operating, but if the shutdown is prolonged, visa processing could be limited.
• E-Verify deadlines are suspended while the system is offline.
• USCIS continues to accept EB-5 Regional Center-related visa petitions and adjustments, but processing is on hold until the program is reauthorized.

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The situation

During the ongoing partial government shutdown, most immigration functions remain largely in operation, with some exceptions. Affected government functions will not entirely return to normal until the U.S. Congress and President Trump reach an agreement on the remaining unresolved portions of the FY 2019 federal budget or on an interim measure while negotiations continue. In the meantime, if the shutdown is prolonged, it could impact even currently unaffected immigration functions.

The following is updated information about the impact of the shutdown.

Visa applications at U.S. consulates

U.S. consulates are currently open and processing visa applications, but foreign nationals who anticipate a need for a new visa in the coming weeks or months should consider submitting an application and making a visa appointment as soon as possible. Though application fees are currently supporting Department of State consular operations, a prolonged shutdown could deplete these funds, leading the State Department to suspend visa processing or limit it to urgent medical or humanitarian cases only. 

Visa applications subject to a security clearance could be subject to longer-than-usual delays if clearances require input from other government agencies affected by the shutdown. 

E-Verify and employment eligibility verification

While E-Verify is offline, USCIS has confirmed that employers and employees will not be expected to meet the usual E-Verify deadlines. The agency is suspending the three-day deadline for creating E-Verify cases, as well as extending the time period for employees to resolve tentative nonconfirmations (TNCs) by the number of days E-Verify remains unavailable.  E-Verify participating employers must not take adverse action against an employee whose employment eligibility cannot be confirmed due to the unavailability of the verification system.

All employers remain subject to federal Form I-9 Employment Eligibility Verification obligations, including I-9 verification deadlines and documentary requirements.

The EB-5 Regional Center Program

While the EB-5 Immigrant Investor Regional Center program is awaiting reauthorization by Congress, USCIS has confirmed it will continue to accept regional-center affiliated Form I-526 immigrant visa petitions and Form I-485 adjustment of status applications, but will place these filings on hold until further notice.

Applications for Regional Center designation on Form I-924 are not being accepted and any such applications pending as of December 21, 2018 will be placed on hold until further notice.

For foreign nationals already in EB-5 conditional permanent resident status, USCIS has confirmed that Form I-829 petitions to remove conditions on that status are not affected by the expiration of the Regional Center program.

Other immigration functions

Operations at other immigration and immigration-related agencies remain consistent with our prior communications. 

• USCIS continues to process applications and petitions for immigration benefits during the shutdown and has confirmed that all individuals should attend scheduled USCIS interviews and appointments.
• Because DOL remains fully funded for FY 2019, PERM labor certification operations remain as normal. However, due to a technical malfunction unrelated to the shutdown, the iCERT system remains offline and the processing of LCAs, prevailing wage determinations and H-2A/H-2B labor certifications is temporarily suspended. 
• CBP continues to adjudicate border applications for TN and L-1 status. Deferred inspection offices continue to accept Form I-94 correction requests, but may be backlogged. Foreign nationals seeking I-94 corrections should contact their local CBP office in advance to confirm service availability. 
• Social Security number issuance and state DMV driver’s license and ID processing should not be affected by the shutdown.

Depending on how long the shutdown lasts, once the budget impasse is resolved, there could be varying levels of processing delays while affected agencies get back up to speed. Backlogs in the affected areas are likely to build up during the shutdown and it could take several days or weeks for agencies to work through them.

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