This article was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Loan Huynh is an active member.
For employers with foreign national workers, it is important to understand which immigration related functions may be affected. There are no guarantees, but based on prior shutdowns, below is a brief overview of how key agencies’ processes may be affected and actions employers can take now.
U.S. Citizenship and Immigration Services
As a fee-based agency that is not dependent on federal appropriations, U.S. Citizenship and Immigration Services (USCIS) is expected to continue processing petitions and applications. New filings, extensions, and USCIS-mandated steps in the green card process can continue to be filed and processed, with some possible processing delays.
However, filings that require a certified Labor Condition Application (LCA) from the Department of Labor, such as requests for H-1B, H-1B1, and E-3 classification, may be delayed if the certification has not been completed before shutdown. Filings without certified LCAs cannot be approved during the shutdown. USCIS has historically accepted late I-129 filings upon reopening with evidence that the primary reason for the delay was the government shutdown. USCIS has not confirmed, however, whether they will adopt a similar approach this time.
E-Verify, USCIS’s system that allows employers to verify work authorization, will be inaccessible during a shutdown because that program requires appropriated funds. Although E-Verify would be suspended during a government shutdown, employers will need to continue to complete Forms I-9 for any new hires in a timely fashion. The information may be input into E-Verify once the government reopens.
Employers should:
- Keep evidence of filing delays caused by a shutdown for possible late acceptance.
- Continue timely completion of Forms I-9 for all new hires.
- Plan to update E-Verify once the system reopens.
- Keep an eye out for updates from USCIS indicating whether it will accept filings without or with pending LCAs.
Department of Labor
The Office of Foreign Labor Certification (OFLC), which oversees filings with the Department of Labor (DOL), is normally closed during government shutdowns. OFLC typically does not accept or process any applications or related materials during a shutdown, including LCAs, applications for a prevailing wage determination, applications for permanent employment certification (PERM), and PERM audit responses. OFLC has stated that the Foreign Labor Application Gateway (FLAG) system will be disabled and inaccessible in the event of a shutdown. As a result, users will not be able to access the FLAG system to print approved applications or take any other actions within the system. Additionally, appeals pending with the Board of Alien Labor Certification Appeals (BALCA) will be placed on hold during the shutdown.
Employers should:
- Prepare for processing delays upon reopening.
Department of State
Generally, the Department of State (DOS) is not affected by government shutdowns because visa and passport operations are fee-funded. However, during prior shutdowns, DOS has reduced or halted visa issuance. Individuals with scheduled or planned visa stamp appointments should be prepared for delays or disruption to consular services and should monitor the situation closely. If international travel cannot be avoided, individuals should understand that interruptions to consular services can result in prolonged delays and the possibility of being unable to return to the United States for several months.
Employers should:
- Advise employees to expect delays in visa issuance or stamping.
- Review travel plans — avoid non-essential international travel around shutdown dates.
Immigration and Customs Enforcement/Customs and Border Protection
U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) personnel are considered essential workers, so these agencies should remain fully operational. Ports of entry at airports or land border crossings will remain open. 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 where they intend to apply.
Employers should:
- Confirm operations at ports of entry or pre-clearance locations for TN/L-1 applications.
- Advise employees on possible variations in processing at different locations.
Employers and sponsored employees are encouraged to monitor the situation for updates and consult Fredrikson with questions or concerns.
Executive Office for Immigration Review
Based on previous actions during a federal government shutdown in 2013, the Executive Office for Immigration Review (EOIR) would be expected to continue to adjudicate detained cases. Court functions that support the detained caseload would continue, but other functions would be suspended. The Board of Immigration Appeals (BIA) would process emergency stay requests as well as cases where the person is detained, including case appeals, motions, federal court remands, and bonds. The BIA Clerk’s Office staff would accept all filings. The Office of the Chief Administrative Hearing Officer would maintain its ability to issue subpoenas and accept for filing any complaints that must be filed to comply with statutory deadlines.
Employers should:
- Expect processing delays in non-detained cases.
- Check the EOIR’s website for the operational status of specific immigration courts.
