United States: Preparing for a Possible Federal Government Shutdown

• If Congress is unable to pass a funding resolution by December 8, immigration operations at the Department of Labor would be suspended; USCIS and State Department application processing would continue but could be delayed. • E-Verify, the EB-5 Regional Center program and other immigration programs will expire if they are not reauthorized by December 8.

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Dec 01, 2017

The situation
Debate over funding levels for FY 2018 is intensifying in Washington, raising the possibility of a federal government shutdown and the suspension or delay of some immigration functions if a spending agreement or stopgap measure cannot be reached by December 8. Though a shutdown is by no means certain, employers may want to take steps now to minimize disruptions in the event of a funding impasse.  

The December 8 deadline also attaches to several expiring immigration programs: the E-Verify employment eligibility verification program, the EB-5 Regional Center permanent residence program for foreign investors, the Conrad 30 program for foreign medical graduates and the non-minister religious worker permanent residence program. The statutory authority for these programs will expire if Congress does not take action to reauthorize or temporarily extend them by December 8.

A closer look at immigration functions
Immigration operations would likely be affected as follows in the event of a shutdown:

  • Department of Labor:  Foreign labor certification services are likely to be suspended as non-essential functions. No PERM applications, labor condition applications (LCAs), prevailing wage requests (PWRs) or applications for temporary labor certification would be processed. Online application systems would not accept PERM applications or audit responses, LCAs or PWRs. The agency would also be unable to accept submissions by mail.
  • U.S. Citizenship & Immigration Services (USCIS):  USCIS should continue to process applications and petitions for immigration benefits during a government shutdown, though processing delays could occur. Because DOL LCA operations would be suspended, employers planning to file H-1B, E-3 or H-1B1 extensions or changes of employer - for which a DOL-certified LCA is required - may be affected. USCIS's SAVE system, which is used by government agencies to verify the immigration status of applicants for benefits, could remain operational, but if it is suspended, foreign nationals applying for driver's licenses and other state or federal benefits would experience delays. 
  • Department of State (DOS):  DOS should process visa applications as long as filing fees remain available to fund consular operations. If a shutdown is lengthy and fee funding is depleted, the agency could suspend visa processing or limit it to emergency cases only.
  • Customs and Border Protection (CBP):  Inspection functions at U.S. borders and ports of entry would remain in operation. CBP would likely process immigration applications at the border, such as applications for initial TN or blanket L status submitted by Canadian nationals.
  • Social Security Administration (SSA):  SSA would not process applications for Social Security numbers or replacement cards during a shutdown.

Impact on expiring immigration programs 
The following will occur - at least until further congressional action - if sunsetting immigration programs are not extended by December 8:  

  • E-Verify:  Employers who participate in the system would no longer be able to submit employment verification queries. 
  • EB-5 Regional Center Program:  USCIS would cease to accept petitions and applications for adjustment of status under this category. 
  • Conrad 30 Waiver Applications and Non-Minister Religious Worker Petitions:  USCIS would no longer accept these applications and petitions.

Fragomen is closely following the appropriations debate and will issue further client alerts as developments occur. 

This alert is for informational purposes only. If you have questions about the impact of a federal shutdown or expiring immigration program on your organization, please contact the immigration professional with whom you work at Fragomen. 

© 2017 Fragomen, Del Rey, Bernsen & Loewy, LLP, Fragomen Global LLP and affiliates. All Rights Reserved.

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