22:20 22 January in News Updates

At the time of this writing, as a result of the shutdown of the federal government certain federal government services have been temporarily reduced or closed down entirely.  Immigration is primarily a federal function.  However, whether and how immigration services will be impacted by the shutdown depends largely on the nature of each agency and the function it serves.

It appears Congress may pass a stop-gap measure by the end of the day today.  However, even that measure would only delay the congressional funding disputes by two and a half weeks, until February 8th.   The bipartisan agreement presently on the table does not provide a solution to the recipients of the Deferred Action Childhood Arrival program, nor does it fund the government through the rest of the year.  Therefore, it appears the fight is simply deferred for another couple weeks.

Larrabee Albi Coker LLP will continue to monitor the situation and work with you to minimize any negative impact to your businesses and employees as a result of the suspension and reduction of government services to the extent possible.  Below is what we know based on prior government shutdowns:

■  ICE (Immigration and Customs Enforcement)  enforces immigration laws from within the U.S.  They perform I-9 audits and arrest, detain and prosecute individuals for immigration violations.  ICE will remain operational, given the priority placed on enforcement and national security issues. The ICE Student and Exchange Visitor Program (SEVP) offices should be unaffected since SEVP is funded by user fees.

■  CBP (Customs and Border Protection) controls admissions through the airport, land border and sea ports of entry to the U.S.  CBP’s services in the following areas will remain operational:

All Ports of Entry are open, but travelers should expect increased wait times.  Travelers should adjust their trip itineraries to account for unexpected delays

–  Border Patrol and the Office of Air and Marine are also continuing with operations

– The Admissibility Review Office (ARO) is open and continues to function

– All global entry enrollment centers are open and interviews are continuing.  All Trusted Traveler programs continue to function as usual.

■  USCIS (U.S. Citizenship and Immigration Services) handles all benefits-related filings, such as petitions for work authorization and immigrant visa petitions.  USCIS is not heavily impacted by the shutdown, as their budget is funded primarily by user fees — these are the filing fees your company and/or your employee pays for USCIS to adjudicate any benefit-granting petition or application.  All USCIS offices worldwide are open and individuals should report to interviews and appointments as scheduled. USCIS has confirmed that DACA renewal processing will continue.

E-Verify is currently unavailable.  The “three-day rule” for E-Verify has been suspended and the time in which employees may resolve Tentative Nonconfirmations (TCNs) has been extended.  USCIS has confirmed that employers should not take adverse action against employees due to an interim case status during this time.

Non-fee based organizations such as the U.S. Department of State, U.S. Department of Labor and Executive Office for Immigration Review are the most impacted by the government shutdown, resulting in a dramatic deterioration of services offered by these agencies.

■  DOS (U.S. Department of State)  oversees all U.S. Embassies and Consulates abroad, which include nonimmigrant and immigrant visa stamp interviews and visa issuance.  For now, DOS is continuing as many normal operations as possible, however as existing funding is depleted, visa services, including the availability of visa appointments, may be impacted. This could significantly delay an individual’s ability to return to the U.S. after international travel, or an employer’s ability to on-board an employee who is transferring to the U.S. from abroad (as opposed to hiring a foreign national who is already in the U.S.).

■  DOL (U.S. Department of Labor)  enforces wage and hour laws, manages the labor certification process (first step in many green card processes) and handles Labor Condition Applications (LCAs) which are required for filing with an H-1B and E-3.

DOL has suspended services entirely; is not accepting nor processing any applications or related materials (such as audit responses), including Labor Condition Applications, Applications for Prevailing Wage Determination, Applications for Temporary Employment Certification, or Applications for Permanent Employment Certification. Its web site, including the iCERT Visa Portal System and the PERM system, is unable to process any requests or allow authorized users to access their online accounts.

DOL’s Office of Administrative Law Judges will be unable to perform any case-related activities, including conducting hearings. Hearings that have been previously scheduled will therefore be cancelled prior to the date of the hearing, and they will not be rescheduled for hearing until an appropriations bill or continuing resolution takes effect.

The temporary elimination of DOL functions impacts all H-1B and E-3 filings, the ability to file PERM labor certifications, and the processing time for PERMs. 

■  H-1B and E-3 LCAs   Although the petitions are adjudicated by USCIS or DOS, and employers pay significant filing fees for adjudication, these petitions also require a Labor Condition Application to be certified by the Department of Labor, which is not a fee-based government agency.

■  EOIR (Executive Office for Immigration Review) oversees the Immigration Courts nationwide.  It has responsibility for hearing removal (deportation) cases, political asylum cases, and similar Court-based relief from removal from the U.S.  Already lengthy delays for Court dates are likely to increase significantly as only essential functions are currently operational.

Again, LAC will continue to update you of any new developments as the situation unfolds.  We are hopeful that this will be a very temporary situation.

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