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How is U.S. Immigration Impacted by the Government Shutdown? How is U.S. Immigration Impacted by the Government Shutdown?

How is U.S. Immigration Impacted by the Government Shutdown?

The December 21, 2018 federal government shutdown is now the longest in American history. The partial shutdown is the result of a decades-long disagreement around border wall funding along our southern border. The exact impact of the shutdown on each of the immigration-related agencies is varied and continues to evolve based on the source of funding. Ironically, with the partial government shutdown, immigration backlogs have dramatically increased across the immigration court system. For employers, the most immediate and greatest impact of the shutdown is on the federal E-Verify system, which is intended to help stifle illegal immigration by giving employers greater access to electronic records related to the identity and employment eligibility of their employees. Here’s what employers can expect as the government shutdown continues:

U.S. Citizenship and Immigration Services (USCIS): USCIS is a fee-funded agency; therefore, it continues business as usual. However, programs that receive separate funding (E-Verify, Non-Minister Religious Workers, Conrad 30 Waiver Program for J-1 medical doctors,) may be affected by the shutdown.

E-Verify: E-Verify is a federal, web-based system that allows enrolled employers to verify the eligibility of their employees to work in the United States. Based on the unique funding mechanism of the federal E-Verify program, it is directly impacted by the federal government shutdown. Specifically,
  • The “three-day rule” for creating E-Verify cases is suspended;
  • The time period during which employees may resolve Tentative Non-confirmations (TNCs) will be extended;
  • E-Verify will provide additional guidance regarding the “three-day rule” and time period to resolve TNCs once operations resume;
  • Employers may not take adverse action against an employee because the E-Verify case is in an interim case status due to the unavailability of E-Verify;
  • Federal contractors with the Federal Acquisition Regulation (FAR) E-Verify clause should contact their contracting officer to inquire about extending federal contractor deadlines.
Importantly, employers must continue to timely complete Form I-9 no later than the third business day after an employee begins work and otherwise fully comply with all Form I-9 requirements. Employers should track E-Verify records that will need to be immediately initiated or resolved once the program is operational.

Non-Minister Religious Workers: Certain religious workers (both ministers and non-ministers) have historically been eligible to immigrate to the U.S. to work full-time in religious vocations and occupations, but a statutory limit of 5,000 has applied to non-minister religious workers each fiscal year. The non-minister religious worker program has now lapsed due to the lack of funding for the program, and immigrant petitions in that category will not be accepted by USCIS unless and until the program is renewed.

Conrad 30 Program: Like non-minister religious workers, the Conrad 30 program exists by virtue of special Congressional funding. The Conrad program permits J-1 physicians to seek a waiver of the two year home residency requirement after completion of their U.S. medical training and a three year commitment to work in any of the numerous underserved areas across the country. The expiration of the program should not affect current J-1 physicians seeking waiver but may affect future applicants if funding is not quickly restored.

U.S. Customs and Border Protection (CBP): Immigration and Customs inspections, as well as related law enforcement personnel, are deemed essential and as such, border operations and ports of entry will continue to operate. However, as those federal workers continue to work without pay, processing of border applications may be impacted and wait times may be greater than normal.

Immigration Customs Enforcement (ICE): ICE enforcement and removal procedures are deemed essential and will continue, albeit without pay for those federal workers. The Student and Exchange Visitor Program (SEVP) responsible for oversight of F-1 and J-1 student programs will not be suspended due to its fee-funded nature.

Department of Labor (DOL): DOL remains unaffected by the government shutdown, at least for now. In September, 2018, President Trump signed a limited spending bill funding the DOL through the end of September 2019. DOL will continue to process H-1B related Labor Condition Applications, Permanent Labor Certification applications associated with U.S. permanent residency (“green card”), and related Prevailing Wage Determinations.

Department of State (DOS): The State Department manages and oversees all U.S. Embassies and Consulates worldwide. Temporary and permanent visa and passport operations are fee-funded and, therefore, remain unaffected by the partial government shutdown. The DOS website will not be updated with the exception of urgent safety and security information and processing times may be slower than normal.

If you have questions regarding U.S. immigration law and policy, please contact Jenifer M. Brown or Christl Glier.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.
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