United States: U.S. Alert – How Will The Government SHUTDOWN Effect Immigration?

What Happens if the Government Shuts Down?

AILA Doc. No. 17042640 | Dated December 17, 2018

December 17, 2018 UPDATE: Congressional negotiations on federal spending for the remainder of FY 2019 remain very active. If Congress and the President can’t come to an agreement on a spending bill or continuing resolution by midnight December 21, 2018, approximately 25 percent of government functions will shut down. When it comes to immigration, agencies that would be impacted by a government shutdown include the Department of Homeland Security and its immigration-related components (CBP, ICE, USCIS, CIS Ombudsman), the Department of Justice (EOIR), and the Department of State. See below for information as to how these agencies operated during prior shutdown periods. We will update this page with additional information from the agencies as it becomes available.

Note, however, that the Department of Labor (DOL) would not be impacted by a government shutdown. On September 28, 2018, President Trump signed a minibus appropriations bill funding DOL through the end of September 30, 2019.

January 22, 2018: Generally, if the government shuts for budgetary reasons, all but “essential” personnel are furloughed and are not allowed to work.

USCIS: USCIS is a fee-funded agency so if the government shuts down, it is generally business as usual. The exception to this is those programs that receive appropriated funds – E-Verify, the EB-5 Immigrant Investor Regional Center Program, Conrad 30 J-1 doctors, and non-minister religious workers. As announced by USCIS on January 20, 2018, those programs may be suspended or otherwise impacted. Note that while USCIS has not yet confirmed how cases will be processed post-shutdown, in 2013, USCIS accepted late I-129 filings provided the petition was submitted with evidence that the primary reason for failing to timely file an extension of stay or change of status request was the government shutdown.

January 21, 2018 Update: USCIS has confirmed that DACA renewal processing will continue.

January 22, 2018 Update: USCIS confirmed that myE-Verify services are unavailable, including myE-Verify accounts, Self Check, Self Lock, Case History, and Case Tracker. USCIS also confirmed that E-Verify is unavailable, which means that employers will not be able to access their E-Verify accounts and Customer Service is closed. USCIS implemented temporary policies during the shutdown, including suspending the “three-day rule,” extending the time in which employees may resolve Tentative Nonconfirmations (TNCs), and confirming that employers should not take adverse action against employees due to an interim case status during this time.

DOS: Visa and passport operations are fee-funded and should not be impacted by a lapse in appropriations, but operating status and funding will need to be monitored closely. If visa operations are affected, consular posts will generally only handle diplomatic visas and “life or death” emergencies.

CBP: Inspection and law enforcement personnel are considered “essential.” Ports of entry will be open; however, processing of applications filed at the border may be impacted.

ICE: ICE enforcement and removal operations will continue, and ICE attorneys will typically focus on the detained docket during a shutdown. The ICE Student and Exchange Visitor Program (SEVP) offices are unaffected since SEVP is funded by fees.

EOIR: Immigration court cases on the detained docket will proceed during the lapse in congressional appropriations while non-detained docket cases will be reset for a later date when funding resumes. Courts with detained dockets will receive all filings but will only process those involving detained dockets. Courts with only non-detained dockets will not be open and will not accept filings.

DOL: The OFLC would cease processing all applications in the event of a government shutdown, and personnel would not be available to respond to e-mail or other inquiries. OFLC’s web-based systems, iCERT and PERM, would be inaccessible, and BALCA dockets will be placed on hold.

CIS Ombudsman: The DHS Office of the CIS Ombudsman would close and would not accept any inquiries through its online case intake system.

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.