SHUTDOWN Impact: USCIS, DOL, E-Verify, Consulates & More

Applications and Interviews: U.S. Citizenship and Immigration Services (USCIS) Is Not Affected

USCIS operations are fully funded by application fees paid when applications are filed, so the agency is not affected by federal budget negotiations. As a result, all USCIS operations including the four service centers and all local offices are up and running under normal conditions. All visa petitions and green card and naturalization applications will continue to be adjudicated, and all scheduled green card and citizenship interviews will be held.

PERM; H-1B Labor Condition Applications and Prevailing Wages Suspended: New PERM, Prevailing Wage and Labor Condition Applications Will Not Be Accepted or Processed During the Shutdown

As of noon on October 1, 2013, the iCERT portal and PERM websites were disabled. Notices indicating that they will be closed until the government is reopened are posted instead. This means that employers may not submit, print out, check status on or receive approved applications of the following:

• PERM Labor Certifications;
• Labor Condition Applications (required for H-1B and E-3 visa applications); and
• Prevailing Wage Determination.

The impact of this on employers and foreign nationals will depend on how long the shutdown lasts. Processing of all applications will be delayed, and processing times will lengthen since no work is currently being done by Department of Labor (DOL) employees in the above-referenced applications.

DOL has not indicated if any concessions will be made for employers with expiring recruitment or prevailing wages, such that the inability to file a PERM application during the shutdown period would cause severe economic and other hardships to employers.

Similarly, employers unable to file Labor Condition Applications or to receive Labor Condition Application approvals from DOL for H-1B workers with expiring H-1B status may also be negatively impacted. Their employees may go out of legal status in the United States. DOL has made no announcements regarding contingency plans in this regard. Depending upon how long the shutdown lasts, it is conceivable that USCIS may allow H-1B applications to be filed with proof of a pending Labor Condition Application in order to address the problem of expiring status documents.

Visa Interviews Abroad: Anticipate Delays

U.S. consular operations overseas will remain operational as long as there are sufficient funds to support them. That means the State Department will keep processing foreign applications for U.S. visas and passports and providing services to U.S. citizens overseas as long as it can. The State Department will apply a furlough to locally employed staff. This reduction in staff will likely cause delays in visa processing, and these delays could lengthen over time. Visa interviews could be shut down altogether if funding is not allocated soon. It may be worthwhile to schedule visa appointments sooner rather than later if travel dates are not fixed.

TN and Other NAFTA Applications at the Border: Anticipate Delays

Inspection and law enforcement personnel are considered “excepted,” so the ports of entry will stay open. However, staffing may be limited, and delays are anticipated at certain ports of entry. Visa status determinations made at the ports of entry (e.g., TN) should continue, though it is foreseeable that there will be delays.

New Social Security Number Applications Suspended

Though the Social Security Administration (SSA) will remain open during the shutdown, it will not be accepting or processing applications for Social Security numbers (SSNs) or replacement Social Security cards. Employees do not need an SSN to start work, but not having an SSN could affect their ability to obtain a U.S. driver’s license, open a bank account and obtain other benefits.

All E-Verify Operations Are Suspended

The E-Verify website and all customer service functions are closed and unavailable. While E-Verify is unavailable, it will not be possible to access E-Verify accounts. As a result, it is not possible to enroll, verify employment eligibility or make any changes to an E-Verify account.

Because the customer service function is closed, employees will be unable to resolve Tentative Nonconfirmations (TNCs). In addition, all webinars and training sessions are cancelled until further notice, and E-Verify Self-Check is unavailable.
USCIS has implemented the following temporary policies for E-Verify users during the government shutdown:
• The ‘three-day rule’ for E-Verify cases is suspended for cases affected by the shutdown. It will provide additional guidance once it reopens. This does not affect the Form I-9 requirement—employers must still complete the Form I-9 no later than the third business day after an employee starts work for pay.
• The time period during which employees may resolve TNCs will be extended. Days the federal government is closed will not count toward the eight federal government workdays the employee has to go to the SSA or contact the Department of Homeland Security (DHS). It will provide additional time once it reopens.
• Employers may not take any adverse action against an employee because of an E-Verify interim case status, including while the employee’s case is in an extended interim case status due to a federal government shutdown (It may be worthwhile to consult the E-Verify User Manual for more information on interim case statuses).
I-9 Enforcement Actions

The majority of Immigration and Customs Enforcement employees are considered to be essential for “safety of human life or protection of property,” so it is likely that officers will continue to be on duty. Those in the midst of an audit should still comply with all required deadlines and may want to contact their investigating officer to determine if any extensions are available.

I-9 Enforcement Action Appeals

During the government shutdown, the Office of the Chief Administrative Hearing Officer will maintain its ability to issue subpoenas and accept for filing any complaints that must be filed to comply with statutory deadlines. For employers that are planning to appeal a Notice of Intent to Fine for I-9 violations, they must adhere to the 30-day deadline. The government shutdown has not affected this requirement.

Customs and Border Protection and Immigration and Customs Enforcement

DHS designates about 86 percent of its more than 200,000 employees as “essential” for the “safety of human life or protection of property.” As a result, employment will continue as usual for most Customs and Border Protection employees, airport screening officers, U.S. Secret Service agents and others in passenger processing and cargo inspection at ports of entry and in the detention of drug traffickers or undocumented immigrants.

Immigration Courts

Immigration courts nationwide are continuing to adjudicate cases where foreign nationals are being detained, and all court functions that support the detained caseload will continue. Cases for non-detained foreign nationals are being canceled and will be rescheduled once the government returns to normal operations
Board of Immigration Appeals (BIA)
BIA is processing emergency stay requests, as well as cases where the foreign national is detained, including case appeals, motions, federal court remands and bonds. The stay line is open (for emergency stay calls only), but all other telephone lines have been switched to closed status. The BIA Clerk’s Office staff is accepting all filings and will be open Monday through Friday, from 8:00 a.m. until 4:30 p.m.

About vbimmigration

For More Information Call 215 979 1840 Immigration Law Partner at Duane Morris, LLP. 20 years representing companies and individuals in all aspects of immigration law. H-1Bs, L-1s, TNs, PERM, Global immigration; compliance; working visas; green cards; consular processing citizenship and deportation.
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