Most operations across US immigration agencies are either fee based or considered “essential” and therefore would be expected to proceed normally if the government were to shut down on December 22.
Barring passage of an eleventh-hour short-term spending bill, seven appropriations bills will expire December 22 at 12:00 am, resulting in a partial government shutdown. Affected departments (including the US Departments of Homeland Security and State) will be required to close all nonessential discretionary federal programs and furlough nonessential employees until Congress appropriates additional funds.
Based on normal shutdown procedures and how related agencies have handled similar situations in the past, we expect the impact on immigration matters to be as follows:
- Adjudications at US Citizenship and Immigration Services (USCIS), the agency at the Department of Homeland Security that reviews nonimmigrant and immigrant petitions and applications for immigration benefits, are fee funded, and thus should continue on a normal schedule.
- The E-Verify Program, which is run by USCIS, is not expected to be operational if there is a government shutdown. Employers are advised that a shutdown will not relieve them of their responsibilities; however, as stated in the governing memorandum of understanding, “[i]f the automated system to be queried is temporarily unavailable, the 3-day time period is extended until it is again operational in order to accommodate the Employer’s attempting, in good faith, to make inquiries during the period of unavailability.” Should a shutdown occur, the E-Verify public website and the E-Verify log-in page are expected to contain additional guidance for employers.
- Visa processing at Department of State consular posts would likely not be affected, at least at first. However, an extended shutdown could lead to a suspension of services other than emergency support for US citizens. If posts are forced to scale back, past experience suggests that visa applications could be affected first. During the 1995 and 1996 shutdowns, which together lasted 27 days, an estimated 20,000–30,000 visa applications went unprocessed every day. Officers with US Customs and Border Protection and Immigration and Customs Enforcement are “essential” personnel, which means these agencies would also operate on a normal schedule.
The US Department of Labor is funded through the end of fiscal year 2019 (September 30, 2019) and will not face a shutdown. Services such as the temporary and permanent labor certification functions at the Office of Foreign Labor Certification and prevailing wage determinations will continue to operate normally, and all petitions with USCIS that require a certified Labor Condition Application (H-1B, E-3, and H-1B1) will be similarly unaffected.
We will continue to monitor the situation and advise of any important developments.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
Eric S. Bord