​Reports out of Washington, D.C. suggest an increasing likelihood that the Federal government will shut down on January 20, 2018, due to a budget stalemate. Any shutdown will necessarily affect immigration processing, since many of the agencies involved in the immigration process are funded entirely or primarily through Congressional appropriations. Following is a brief overview of the expected impact of a shutdown on immigration processing at various agencies:

• Department of Labor - During a shutdown, the Office of Foreign Labor Certification (OFLC) within the DOL will not accept or process any applications or related materials. This will include Labor Condition Applications (LCA) for H-1B petitions, Applications for Prevailing Wage Determination for PERM applications, Applications for Temporary Employment Certification for H-2A and H-2B visas, or Applications for Permanent Employment Certification (PERM) for permanent residence. OFLC's web site, including the iCERT Visa Portal System, will remain static and users, including attorneys, will be unable to submit any requests or access their iCERT accounts. Any applications or requests submitted prior to the shutdown and that were still pending as of midnight January 19, will not be processed and will be held in abeyance until the department resumes operations.
• U.S. Citizenship & Immigration Services - Because USCIS is funded primarily through application fees, most USCIS operations will continue normally through a shutdown. Applications and petitions submitted prior to and during a shutdown will be processed. However, as noted above, applications or petitions that require any certification from DOL, such as H-1B petitions and I-140 petitions supported by PERM labor certifications cannot be filed.
• E-Verify - The E-Verify system will be unavailable, and users will not be able to access their E-Verify accounts for any purpose. Although we do not know at this point what actions USCIS will take, in the past, the agency has implemented to following policies for E-Verify employers during a shutdown:
  • The “three-day rule” is suspended during the shutdown. USCIS will provide additional guidance upon resuming E-Verify operations. The rule suspension affects E-Verify only and DOES NOT change an employer’s obligations under the I-9 employment eligibility verification process.
  • The eight federal working day period to resolve tentative nonconfirmations (TNCs) is extended. USCIS will provide additional guidance upon resuming E-Verify operations.
  • Employers MAY NOT take any adverse action against an employee with an unresolved case status during a shutdown.
• Department of State – The Department of State (DOS) will likely continue operations as normally as possible.  However, visa applicants should expect delays in securing visa appointments or receiving visas following interviews at U.S. consulates. Some delays in visa issuance may be significant since all visa applicants must undergo a security clearance by agencies outside of DOS and those agencies may be reducing resources dedicated to such clearances.
• Executive Office for Immigration Review – During a shutdown Immigration Courts will be closed and ICE Trial Attorneys will work only limited dockets. Individuals in removal proceedings with hearings scheduled during a shutdown will receive new hearing dates.
• U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection – ICE detention and removal operations will continue, as will CBP immigration screening and exterior enforcement operations.

We will keep clients updated on any changes that might affect immigration processing. Meanwhile, if you have any questions about how a shutdown might affect specific cases, please do not hesitate to contact us.

​Updating our post from last week (see below), it appears that Congress will soon pass a Continuing Resolution (CR) to temporarily extend budget funding and avoid a shutdown of the Federal government on October 1.

The CR, if passed, will fund the Federal government through December 11, 2015, at which time Congress will need to pass new funding legislation or the government will shut down at that time.

Passage of the CR will at least temporarily alleviate the pressure we and our clients faced with regard to filing and processing critical immigration applications, including Labor Condition Applications (LCAs) for H-1B workers.

Of course, this is only a temporary reprieve, and we will continue monitor this situation as the new December 11 deadline approaches. Meanwhile, if you have any questions, please contact us.

Reports out of Washington, D.C. suggest that there is an increasing possibility that the Federal government will shutdown on October 1, 2015, due to a budget stalemate, as happened in 2013.

We will provide additional guidance as the situation develops, but of immediate concern is the filing of Labor Condition Applications (LCAs) with the Department of Labor (DOL).

During a Federal government shutdown, the Office of Foreign Labor Certification (OFLC) within DOL will not accept or process any applications or related materials. This will include LCAs, which are a prerequisite for H-1B petitions.

Any applications or requests submitted prior to the shutdown and that are still pending as of midnight on October 1, will not be processed and will be held in abeyance until the department resumes operations. No new applications will be accepted after October 1 until the shutdown ends. 
 
The DOL typically takes seven full days to process LCA filings, so it is critical that employers file the required LCA no later than Wednesday, September 23, 2015, to have the best chance of getting the certification back before October 1.

If you have any questions, or if you identify any candidates for H-1B visa processing who will need an LCA filed as soon as possible, please contact us.