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Immigration Alert: Government Shutdown Impacts Immigration Related Services

The failure of Congress to reach an agreement regarding the federal budget resulted in a government shutdown effective January 20, 2018 at 12:01 AM. The shutdown is expected to impact immigration related services provided by the U.S. Department of Labor (DOL), U.S. Citizenship and Immigration Services (USCIS), U.S. Customs and Border Protection (CBP), and the U.S. Department of State (DOS) as outlined below:

U.S. Department of Labor
DOL will not process, nor accept for processing, Labor Condition Applications (required for H-1B, H-1B1 and E-3 visa applications), Prevailing Wage Requests, and PERM labor certification applications. Additionally, DOL will not adjudicate applications or PERM audit responses filed prior to the shutdown. When the last government shutdown resolved in 2013, DOL did make provisions to allow for the late filing of PERM applications with expired recruitment and PERM audit responses that were not filed due to the shutdown.

U.S. Citizenship and Immigration Services
Because USCIS application and petition adjudications are primarily funded by user application fees, USCIS is expected to continue operations without great disruption. However, the DOL shutdown discussed above will impede the filing of visa petitions that require a certified Labor Condition Application as a precondition for filing, including H-1Bs, H-1B1s, and E-3s as referenced above. USCIS has not yet announced whether it will accept H-1B, H-1B1, and E-3 extension of status petitions if such petitions are filed without a certified LCA.

In contrast, USCIS E-Verify service is suspended. During the shutdown, employers will not be able to enroll in E-Verify or to access their E-Verify accounts to verify the employment eligibility of new hires and resolve tentative nonconfirmations (TNCs). E-Verify customer service, online webinars and training sessions, and the Self-Check program will also be unavailable during the shutdown. Employers must still comply with their Form I-9 obligations.

U.S. Customs and Border Protection
CBP personnel, responsible for inspection and law enforcement at U.S. ports of entry, are considered “essential personnel” and U.S. borders and Preflight Inspections (PFI) areas remain open. However, there may be staffing adjustments that could result in increased wait times to clear inspection and secure admission to the U.S. Additionally, petitions that are adjudicated by CBP officers at the border and PFI areas, including TN applications and L-1 petitions for Canadian citizens, could be impacted by the shutdown if such functions are deemed nonessential.

U.S. Department of State
U.S. Embassies and Consulates remain open and will continue to process visa applications as long as funding remains in place. Visa application processing times may be delayed due to staffing adjustments or slowdowns at other federal agencies responsible for processing the security clearances required for visa issuance. A prolonged shutdown could ultimately exhaust DOS appropriations and result in the suspension of visa processing functions for all but emergency cases. Foreign nationals intending to apply for a visa at a U.S. Consulate abroad or intending to travel outside the U.S. without a valid visa in their passport should consult with immigration counsel prior to making definitive plans.

Other Functions Impacted
Employers and foreign nationals should note that the Social Security Administration (SSA), while open, will not accept or process applications for social security numbers. This will impact foreign nationals who require a social security number to be placed on payroll, obtain a driver’s license, and/or open bank accounts.

The situation posed by the federal government shutdown remains fluid, and the impact on immigration related services may change the longer the shutdown persists. Gibney will be closely monitoring the situation and we will provide updates as needed. If you have any questions about this alert, please contact your Gibney representative or email info@gibney.com.