Impact of the 2019 Government Shutdown on Immigration

By Elizabeth Chatham

As Congress and the Trump Administration have been unable to pass a federal spending bill due to the stalemate related to funding of the Southern border wall and border security, the federal government has temporarily shut down. The shutdown will impact certain aspects of processing immigration cases and the manner in which the various government agencies operate. We are closely monitoring the situation and will provide updates as information becomes available. During the shutdown, consult with your immigration counsel to determine how to proceed on initiated projects.

Below is an overview of how a shutdown may impact immigration-related agencies, as provided by the American Immigration Lawyers Association. Generally, if the government shuts down for budgetary reasons, all but "essential" personnel are furloughed and are not permitted to work.

E-VERIFY: The E-Verify internet-based system will be unavailable during the shutdown. Employers must still complete the Form I-9, Employment Eligibility Verification on a timely basis, which is no later than the third day after an employee starts work for pay and comply with all Form I-9 requirements. During the shutdown employers will be unable to create a case, access E-Verify accounts, view or take action on any case, add or delete accounts, reset passwords or run reports. The "three-day rule" for creating new E-Verify cases is suspended while the system is down. The time frame for employers to resolve Tentative Non-confirmation Cases (TNCs) will be extended and the number of days E-Verify remains unavailable will not be counted towards resolving the TNC. Employers should not take adverse actions against employees while an E-Verify case remains in limbo. Please follow this link for more detailed information.

USCIS: The U.S. Citizenship and Immigration Service (USCIS) is a fee-funded agency and will continue to process applications and petitions during the shutdown. DACA renewal processing will continue. Certain non-essential staff will be furloughed and processing delays are anticipated.

DOS: The Department of State (DOS) visa and passport operations are fee-funded and should not be impacted by a lapse in appropriations, but operating status and funding will need to be monitored closely. If visa operations are affected, consular posts will generally announce any limited services. Visa interviews and stamping appointments will continue.

CBP: Customs and Border Protection (CBP) inspection and law enforcement personnel are considered "essential.” Ports of entry will be open; processing of applications filed at the border should not be impacted. International business travelers should be admitted into the United States following normal admission procedures.

ICE: Immigration Customs and Enforcement (ICE) operations will continue, and ICE attorneys will typically focus on the detained docket during a shutdown. The ICE Student and Exchange Visitor Program (SEVP) offices are unaffected since SEVP is funded by fees.

DOL: The Office of Foreign Labor Certification will not be impacted by a government shutdown as a minibus appropriations funding bill will fund DOL through September 30, 2019. However, unrelated to the government shutdown, an incredibly high volume of H-2B applications crashed the iCert portal and caused a system outage. This portal permits the submission of various immigration related filings, including Labor Condition Applications, prevailing wage requests and H-2B and H-2A applications. These applications require an initial filing with DOL through the iCert portal in order to proper file visa requests with USCIS or the DOS. The iCert system appears to be back on line at this time.

CIS Ombudsman: The DHS Office of the CIS Ombudsman will close and not accept any inquiries through its case intake system.

For questions as to how the government shutdown impacts your particular immigration case or use of government services such as E-Verify, contact Volha Andreyeva, Elizabeth Chatham, Alisa Ehrlich, Brad Sandler, Renee Steinle or the Stinson LLP contact with whom you regularly work.

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