Expected Effect Of Government Shutdown On The U.S. Immigration System – Work Visas

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Recent news reports have speculated that Republicans and
Democrats might not be able to reach agreement on annual spending
bills or else a “Continuing Resolution” that would keep
the government funded after the end of the current fiscal year
(September 30, just two weeks away).

While it is still too soon to know whether a shutdown will
happen and how long it will last if it does, we are aware that
clients may be concerned about the effect of a shutdown on
immigration processing. Each time the federal government has
experienced a shutdown, the exact plan for which agencies continue
to provide services and which will suspend services has varied
between Administrations. Based on prior shutdowns, however, the
following is an overview of how the shutdown will likely affect various
processes
.

U.S. Citizenship & Immigration Services:
The processing of petitions and applications at USCIS is expected
to continue uninterrupted, as the agency is funded by user fees and
is not dependent on federal appropriations. Employees needing
extension of their temporary status, or file USCIS-administered
steps of the green card process, should be able to continue filing
and obtaining those adjudications during any shutdown that occurs,
unless their extension requires a certification from the Department
of Labor, as discussed below.

Department of Labor: The Office of Foreign
Labor Certifications, which has oversight over most
immigration-related processes filed with the Department of Labor,
is normally closed during government shutdowns. Consequently, DOL
will neither accept nor process any applications or materials
relating to Labor Condition Applications (LCAs), Prevailing Wage
Determinations, or Applications for Permanent Employment
Certification (i.e. the PERM system).

The operational status of DOL impacts the ability to file
petitions with USCIS that require a certified LCA (such as requests
for H-1B, H-1B1 and E-3 classification). Historically, in instances
where it was not possible to obtain a certified LCA, USCIS
temporarily created an exemption to the LCA requirement to allow
filings that are needed to maintain status. Similarly, the
DOL’s status may impact the structured timing requirements of
PERM applications, but historically DOL has extended any deadlines
that fell during a government shutdown. We anticipate receiving
future guidance on these issues and will continue to provide
updates.

Department of State: the issuance of visas, as
well as related Consular operations, may or may not remain
operational during the shutdown. The Department of State does
maintain a small reserve of unallocated funding that can be used to
allow continued operations; however, the Department of State has
reduced or halted visa issuance during prior shutdowns. Employees
with international travel plans that would require them to obtain a
new visa stamp while abroad should monitor the situation closely
and may need to cancel their travel plans or risk being unable to
return to the United States for several months.

Customs & Border Protection: individuals
entering the U.S. with a valid visa should not encounter any issues
at airports or land border crossings, and the electronic I-94
retrieval system is operational. CBP is normally treated as an
essential law enforcement function that is required to continue
working during a shutdown. However, individuals who seek to apply
for an immigration benefit at a port-of-entry or a pre-clearance
facility (such as TN and L-1 applications for Canadian nationals)
will need to confirm the operational status of the location at
which they intend to apply for the latest information.

E-Verify: the E-Verify system is unavailable
during a government shutdown. As a result, E-Verify employers will
not be able to verify employment eligibility or take any other
action that requires access to an E-Verify account. The three-day
rule for E-Verify cases is suspended, and the time period during
which employees may resolve Tentative Nonconfirmations will be
extended. Employers are not permitted to take any adverse action
against an employee whose query is in an extended interim case
status due to the government shutdown. Once the information is
released, we will provide further information on how to address
situations that cannot adhere to traditional E-Verify deadlines.
Importantly, the interruption of E-Verify does not affect the Form
I-9 obligation. If you have any questions or concerns on how the
government shutdown affects an employee’s immigration process
or employment eligibility verification, please contact your Klasko
Law attorney for further guidance.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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