Congressional negotiations on federal spending for the remainder of FY 2019 remain very active. If Congress and the President can’t come to an agreement on a spending bill or continuing resolution by midnight Friday, December 21, 2018, approximately 25 percent of government functions will shut down. Such a shut down will impact immigration services across a number of different government agencies, affecting many of the systems and processes employers rely on to facilitate employment, including the Department of Homeland Security and its immigration-related components (CBP, ICE, USCIS, CIS Ombudsman), the Department of Justice (EOIR), and the Department of State. However, unlike years past, the Department of Labor (DOL) would not be impacted by a government shut down because on September 28, 2018, President Trump signed a minibus appropriations bill funding DOL through the end of September 30, 2019.

We will closely monitor the circumstances and provide updates as they become available.  Individuals with pending applications or who are planning to travel abroad to secure a visa should consult with their Fox Rothschild immigration attorney, prior to travel.

Generally, if the government shuts for budgetary reasons, all but “essential” personnel are furloughed and are not allowed to work.

E-Verify

E-Verify, the Internet-based system that allows employers to determine the eligibility of prospective employees to work in the United States, would be unavailable during a shut down.  Although USCIS has not yet confirmed how cases will be processed post-shut down, in the past, U.S. Department of Homeland Security has suspended E-Verify’s 3-day rule and extended the time for responding to Tentative Non-Confirmations due to a federal shut down.  Federal contractors are recommended to contact their contracting officers to confirm time frames.  Employers must still complete the Form I-9 on a timely basis.

U.S. Citizenship and Immigration Services

As a fee-based agency, U.S. Citizenship and Immigration Services (USCIS) will continue to process applications and petitions for immigration benefits during the shut down; however, processing delays are likely, as a certain portion of the staff will be furloughed.  Note, however, that myE-Verify services would be unavailable, including myE-Verify accounts, Self Check, Self Lock, Case History, and Case Tracker. In the past, USCIS has relaxed its rules and accepted H-1B filings without certified LCAs when DOL operations have been suspended or delayed, however, USCIS has not yet announced whether it will do so during the current shut down.

Department of Labor

The Department of Labor (DOL) will continue normal operations as it has been funded through the end of September 30, 2019 by a minibus appropriations bill.

U.S. Customs and Border Protection

The majority of the Department of Homeland Security’s U.S. Customs and Border Protection’s (CBP’s) employees are expected to stay on the job at the borders and ports of entry.  CBP is deemed an essential function and will likely continue operations at near normal capacity, however, there may be delays or other issues with the adjudication of applications/petitions for visa status that are normally processed at the border.

The Department of State

The Department of State’s Visa and passport operations are fee-funded and should not be impacted, however, consular operations may be limited.  It is expected that U.S. Consulates abroad will continue to process visa applications for a limited period, at which point the State Department will likely cease processing visas and focus solely on diplomatic services and emergency services for American citizens.

The Bureau of Consular Affairs/Passport Office U.S. Passports

The Bureau of Consular Affairs is a fee-based agency; therefore, the Passport Office should continue to operate normally during a shut down.  However, some those passport offices that are located in federal buildings, which themselves may have to shut down, restricting access to those passport offices.

Social Security Administration

While The Social Security Administration (SSA) is expected to remain open during a shut down, in the past, it has stopped acceptance or processing of Social Security Number (SSN) applications during the shut down.  Although an employee may begin work without a social security number, the lack of an SSN could affect the individual’s ability to secure a U.S. driver’s license, open a bank account, secure credit or obtain other benefits.

State Motor Vehicle Agencies

Although driver’s license and state identification cards are issued by state governments, applications by foreign nationals could be delayed during the shut down because local agencies must access a federal database to verify the foreign national’s immigration status before it may issue a driver’s license or identification card.  This database, known as SAVE, could be suspended during a shut down.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP.  Alka is situated in Fox Rothschild’s Morristown, New Jersey office though she practices throughout the United States and at Consulates worldwide.  You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

The Department of Homeland Security (“DHS”) is the parent agency of several sub-agencies including U.S. Citizenship and Immigration Services (“USCIS”); U.S. Customs and Border Protection (“CBP”) and U.S. Immigration and Customs Enforcement (“ICE”).   These agencies are tasked with all of immigration-related affairs.  In December 2014,  DHS was the only agency that did not receive full-year funding in the federal spending bill, in the midst of the dispute over Obama’s executive actions related to immigration form.

DHS and its sub-agencies were facing a shutdown if a funding bill was not passed.  Fortunately, earlier this week, the U.S. House of Representatives passed a weeklong funding measure after the Senate passed a bill funding DHS through 2015.

Then last week, the House approved a 9 month funding bill for DHS, passing 257-167 (182 Democrats & 75 Republicans) which successfully beat the midnight Friday deadline for DHS funding to expire.

Those who voted against the funding did so in large part due to the lack of language to block Obama’s immigration policies. Back in November, Obama announced executive actions on immigration reform that would allow protections for undocumented foreign-born individuals who have children who are U.S. citizens and have lived in the U.S. for at least five years.  Specifically Obama’s plan was:

 We’re going to offer the following deal: If you’ve been in America more than five years. If you have children who are American citizens or illegal residents. If you register, pass a criminal background check and you’re willing to pay your fair share of taxes, you’ll be able to apply to stay in this country temporarily without fear of deportation.”

His plan caused a stir amongst dissenters of immigration reform, and almost resulted in a DHS shutdown, which was thankfully avoided.