In the latest Weekly Wright Report:
Immigration Update: Impact of Possible Government Shutdown on Immigration Related Processes
By Jan Pederson
We have all been to this rodeo before. If the government temporarily shutters on October 1, 2023, it can be expected that employees deemed essential and required to work during a shutdown will not be happy that they will not be paid until the government reopens for business. Fortunately, most of the agencies which need to be navigated for immigration matters are user fee funded. Thus, they are not at the mercy of Congressional appropriations — mostly.
Here is a breakdown of the immigration related agencies which will be impacted.
Department of Labor
It will be seriously impacted, and adjudications vital to clients, including the PERM labor certification, H-1B,E-3 (special visas for citizens of Australia), H-1B1 (special visas for citizens of Singapore and Chile) and H-2B matters will be shuttered if the government shuts down on October 1. Clients are urged to file Labor Condition Applications (LCAs) and PERM applications this week in the event of a shutdown. The shutdown means that if the LCAs (Form 9035) and PERM (Form 9089) applications are not filed prior to October 1, 2023 and there is a shutdown, they cannot be filed during the shutdown.
This is the agency which disburses immigration benefits, such as EAD work permits, green cards and petition approvals. Because clients’ money funds USCIS, with a few exceptions, USCIS will continue to work. There are exceptions, including the Conrad State 30 and Federal IGA physician waivers (as no fee is paid to USCIS), E-Verify, and non-minister religious workers, which we predict will be suspended.
With respect to E-Verify, employers must continue to meet their legal obligations. The E-Verify cases should be created once the E-Verify system is back online. USCIS will extend the time to resolve tentative non-confirmation letters (TNC), and the number of days to resolve TNC mismatch letters will not be counted against the time employees are granted to commence the process of resolving their TNC letters.
Department of State
U.S. Passport and Visas Services are funded by user fees, and we don’t expect them to be impacted by an interruption in funding. However, as the rest of the operations of a foreign consular post or embassy will be impacted, it can be expected that there will be a ripple effect on passport and visa services.
US Customs & Border Protection (CBP)
CBP inspects people and cargo entering the US. Their programs are deemed to be essential to law enforcement, and they will continue. Land and air ports-of-entry will be open for business. For processing of TN, L and H visas at land ports of entry, it is suggested clients call CBP at the port at which the applicant wishes to enter to determine the current policies on visa processing and the date and place entry is sought (Yes, they usually answer the phone promptly and overall are very helpful).
Transportation Security Administration (TSA)
TSA will be largely unaffected so that we can get through security and on our planes.
Immigration and Customs Enforcement (ICE)
ICE will continue to remove (deport) those who have been ordered removed. SEVIS operations will continue unabated as they are funded by client fees. ICE attorneys will largely focus on hearings for incarcerated people.
Executive Office for Immigration Review (EOIR)
EOIR will be partially open. Immigration Judges will continue to hold hearings for those incarcerated. The Immigration Court cases of persons not incarcerated will be rescheduled to a time when the government reopens. Immigration court cases on the detained docket will proceed during a lapse in congressional appropriations, while non-detained docket cases will be reset for a later date when funding resumes.
The DHS Office of the CIS Ombudsman will shutter if the government shuts down, which means the online system will also be unavailable.
Internal Revenue Service (IRS)
Hoping for a tax holiday? IRS has announced that some employees will be designated as essential and will likely be the employees who open our checks. Note that essential employees are not particularly happy with the designation as they will not be paid during an anticipated shutdown but will be paid later. According to The Washington Post, the IRS has historically been among the most aggressive agency in curtailing operations when federal funding lapses.
FEDERAL AVIATION ADMINISTRATION
No worries for those wanting to undertake air travel, as air traffic controllers and others at the agency will stay on the job if the government shutters.
U.S. POSTAL SERVICE (USPS)
We expect our mail person to deliver the mail, come rain, hail, sleet or snow and government shutdowns. The USPS will continue at full speed during any government shutdown.
It is unlikely we will know until the last minute if there will be a shutdown. If it does happen, it is difficult to estimate how long the shutdown will last: in 2018, the government remained shuttered for over a month while other government shutdowns lasted mere days. In general, though, most government shutdowns in the last 20 years have lasted at least 2 weeks. There is always hope for a last minute Continuing Resolution (CR) as we have had in the past, but our folks on Capital Hill are very hard to read.
We will post updates as we receive them. In the meantime, impacted immigration clients are invited to contact us to make sure any needed H-1Bs, E-3s or PERMs are handled before Sunday. Please contact Jan Pederson at Jan@wcslaw.com if you would like to discuss your specific situation.