Impact on Immigration Matters if Government Shutdown Occurs

Though Congress is continuing to negotiate on the FY2016 budget, if no agreement is reached, and/or no other stopgap method implemented, we will unfortunately be faced with a government shutdown on October 1, 2015, similar to that which occurred in October 2013.  While there is hope that this will not happen, and a legislative vehicle in the form of a “Continuing Resolution” to avoid a shutdown is in play, it is possible many federal government agencies will suspend operations until an agreement is reached.  This could impact immigration functions including Department of Labor filings, Department of State filings, Customs and Border Protection operations and some USCIS functions.

IMPACT ON GOVERNMENT AGENCIES RELATED TO IMMIGRATION PROCESSING:

The American Immigration Lawyer Association (AILA) has been reaching out to the various government agencies for an update on contingency plans due to the possibility of a government shutdown on or after October 1, 2015. To date, no information in response has been received. It is reasonable to believe, however, agency plans in development in the event of a government shutdown next week will mirror plans developed in anticipation of a government shutdown in 2011 and 2013. For example, many of the USCIS functions will continue, since they are primarily funded through user fees. In contrast, because they are funded through appropriations, expect DOL functions to be interrupted. AILA will provide updates as they are released.

• DOL (Department of Labor):

For now, AILA is indicating that OFLC functions (under the Department of Labor) are not “excepted” from a shutdown and its employees would be placed in furlough status should a lapse in appropriated funds occur. Consequently, in the event of a government shutdown, OFLC will neither accept nor process any applications or related materials (such as audit responses), it receives, including Labor Condition Applications (LCA), Applications for Prevailing Wage Determination (PWD), Applications for Temporary Employment Certification, or Applications for Permanent Employment Certification (PERM). OFLC’s web site, including the iCERT Visa Portal System, would become static and unable to process any requests or allow authorized users to access their online accounts.

While DOL made accommodations in 2013 to accept applications that were affected by the shutdown, there is no way to be certain it will do so again

• DOS (Department of State): There is no word as of yet from AILA as to how the Department of State will be impacted by it is possible (based on what occurred in 2013) the Department will continue as many normal operations as possible; operating status and available funding will need to be monitored continuously and closely, and planning for a lapse in appropriations must be continued.

WHAT FOREIGN NATIONAL EMPLOYEES AND THEIR EMPLOYERS SHOULD KNOW:

The government shutdown will definitely have an impact on how the government is able to process immigration related filings and applications.  It is possible for filings and applications that are pending with the government to be delayed and it is possible that some filings and applications may not be able to proceed.  Examples of practical impact on foreign national and employers are:

• Visa Applications at a U.S. Consulate: Even if the Department of State indicates that the U.S. Consulates plan to remain open and process visa applications, this will occur only as long as funding remains available.

Foreign national employees who plan to travel internationally in the next few months and apply for visa stamps at a U.S. consulate should therefore be aware that their visa stamp application may not be processed in the anticipated timeframe OR may not be processed at all which could result in the inability to return to the U.S.

Foreign nationals who have applied for a visa stamp at a U.S. consulate and are currently awaiting security clearance should also anticipate possibly delays as the government agencies that are a part of the security clearance process may suspend operations as part of the government shutdown.

• Border Applications (TN, L1, etc):  Border applications are processed by U.S. Customs and Border Protection (CBP).  The CBP has not yet announced whether they will continue to process these applications, but foreign national employees should anticipate these functions to be possibly impacted by the government shutdown.
• PERM Filings with the Department of Labor (DOL):  During the government shutdown, all DOL immigration related functions will be suspended.  This means that the online system by which PERM applications are filed will not accept new cases.  For PERM cases already filed with the DOL, processing will be temporarily suspended during the government shutdown.
• Application and Petition Filings with USCIS:  USCIS will likely continue to process applications and petitions including nonimmigrant filings (H1B, L1, TN, O1, etc) and immigrant filings (I-140, I-485, etc).  This is because these filings are “fee for service” based activities and not subject to government appropriations.

PLEASE NOTE:  Although USCIS will continue to accept applications and petitions, if a portion of the application or petition requires supporting documentation from another government agency that has suspended operations, the USCIS application/petition may be delayed.  For example:

• An H1B petition filing requires a certified Labor Condition Application (LCA) issued by the Department of Labor.  An employer may not be able to file an H1B in a timely fashion if an LCA is not included with the filing.  In the past, when DOL operations have been shut down, the USCIS has made exceptions and accepted H1B filings without certified LCAs.  However, no announcement has been made as of yet regarding this ability.

• Applications for I-485 Adjustment of Status require background checks.  If the government agencies handling the background checks are shut down, I-485 processing may be delayed.

• A I-140 filing requesting USCIS to reference a prior PERM filing may be delayed if USCIS cannot obtain a copy of the prior PERM filing from the Department of Labor because the Department of Labor is shut down.

• Social Security Number (SSN) Applications:  in 2013, the Social Security Administration (SSA) indicated it would remain open during the shutdown.  However, during the 2013 shutdown, the SSA did not be accept or processnew SSN applications or applications for replacement cards.

• Drivers License Renewal:  While drivers license issuance is a state function, the ability to obtain or renew a license could be impacted by the government shutdown in that the DMV offices are required to use a federal database to verify immigration status before a license can be issued.  If the agency operating this database suspends operations, it is possible that the issuance of drivers licenses could be delayed.

Younossi Law will continue to monitor developments related to the government shutdown as they pertain to immigration related matters and will advise clients accordingly.  For now, we do recommend that employers share this information with their foreign national population immediately.  ***Given the upcoming holiday season when international travel is common, it is essential that employees and employers are aware of what to expect with regard to potential delays in the ability to return to the United States and can plan accordingly.***

Should you have questions regarding this Immigration Report, please contact the immigration professional with whom you usually work at Younossi Law.