The current government shutdown will affect several areas of immigration compliance for employers and individuals. While attempting to be comprehensive, the following post is by no means exhaustive of the shutdown’s impact.
First, a quick guide of what we consider to be the most significant disruptions to employers and individuals:
- Lack of access to E-Verify
- The inability of individuals to apply for visas at U.S. Consulates;
- The inability of employers to obtain certified LCAs for H-1B petitions; PERM labor certifications and prevailing wage determinations.
- The inability of individuals in obtaining replacement Social Security Cards.
- ICE will continue to issue Subpoenas and Notices of Inspection to employers, but audit processing may be delayed.
Second, a more detailed list of the impact of the shutdown broken down by the various agencies of the US government that interface with employers in the Immigration arena.
US Department of Homeland Security
USCIS Immigration Benefits
As an agency funded by filing fees, USCIS will continue normal operations with regards to most of its adjudication operations during the shutdown. Any fee for service activities performed by USCIS will not be affected by the shutdown. This means that employers (and beneficiaries) may continue to file petitions for employment visas (temporary or permanent), adjustment of status applications, and other benefits like EADs and advanced parole petitions. Naturalization ceremonies however appear to have been cancelled. USCIS directs users to report to interviews and appointmest as scheduled and to call I-800-375-5283 with questions.
Given that E-Verify is a free service, it will be unavailable to users during the shutdown. This means that employers who want to: enroll in E-Verify, querry new hires, view or take action on any case, add, delete or edit user ID’s, reset passwords will have to wait until operations resume. As well, the E-Verify Customer Support and related services are closed. In it’s most recent alert, E-verify provides the following practical guidance:
- The “three-day-rule” for new E-verify cases is suspended until further notice.
- The timeframe for resolving TNC (FAN) will be extended. The days the government is shutdd own will not count towards the 8 day deadline.
- Federal contractors need to contact contracting agent to inquire about extending deadline for compliance.
- Employers should NOT take any adverse action against an employee due to E-Verify interim cases status.
Customs and Border Protection
CBP will continue to operate, as its mandate is deemed an “essential function” of the US Government. Border security and customs procedures and processes at the various US land and sea ports of entry are expected to remain unchanged and will continue to accept applications for admissions. However, delays may be expected as CBP is giving a furlough to more than 10 percent of its staff.
US Department of State
At this moment, the Bureau of Consular affairs will continue operations through out its worldwide consular offices until current funding is runs out. Funding is only expected to last a few more days. Fox News Latino reported that after current funding is exhausted consular posts will focus solely on diplomatic services and emergency services for American citizens. Further, visa processing, except in emergency cases, will cease if the shutdown is prolonged. Employers should note that in previous shutdowns, business reasons have not qualified for emergency visa processing.
US Department of Justice
During the government shutdown, the Office of the Chief Administrative Hearing Officer will maintain its ability to issue subpoenas and accept for filing any complaints that must be filed to comply with statutory deadlines.
Immigration courts nationwide are continuing to adjudicate detained cases. Court functions that support the detained caseload will continue, but other functions are suspended. For specific information about a particular court, please visit http://www.justice.gov/eoir/ICstatus.htm.
The Board of Immigration Appeals (BIA) is processing emergency stay requests as well as cases where the alien is detained, including case appeals, motions, federal court remands, and bonds. The stay line is open (for emergency stay calls only), but all other telephone lines have been switched to closed status.
US Department of Labor
Most of the DOL agencies like Wage and Hour and Occupational Health and Safety, will completely close during the shutdown. Further in the Immigration arena, the DOL has announced that the Employment & Training Administration, which handles Labor Condition Applications, Applications for Prevailing Wage Determination, Applications for Temporary Employment Certification, or Applications for Permanent Employment Certification will cease operations.
OFLC’s web site, last updated September 26, 2013, announced that “OFLC will neither accept nor process any applications or related materials (such as audit responses) LCA’s, Prevailing Wage Determinations, Applications for Temporary Employment Certification, or Applications for Permanent Employment Certification. 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 account.”
This will result in delays and will likely prevent an an employer’s ability to file petitions with USCIS, or engage in recruitment efforts, when those petitions require an application approved by DOL. The current backlog of adjudications will likely grow during this time.
Social Security Administration
SSA personnel will continue to perform”essential services” like issuance of checks for beneficaries. However, it will not accept applications for new or replacement Social Security cards or issue receipt notices for those that have lost or stolen cards. This may impact an employers ability to complete I-9 forms.
We will continue to update our readers as more information becomes available.