• Immigration Impact Due To Government Shutdown
  • October 7, 2013 | Author: John A. Connelly
  • Law Firm: Blank Rome LLP - Philadelphia Office
  • The federal government entered a partial shutdown on October 1, 2013 as Congress failed to enact a signed appropriation or continuing resolution. The ensuing lapse of appropriations is impacting federal agencies and services related to immigration benefits and compliance.

    Department of Labor: The Department’s Office of Foreign Labor Certification (“OFLC”) will not accept, review, or process any applications throughout the government shutdown. This suspension of services applies to Labor Condition Applications (“LCAs”), prevailing wage requests, applications for temporary labor certification, applications for permanent labor certification, and audit responses. The OFLC’s website, which includes the iCert portal, will be unavailable during the shutdown. The inability to obtain certified LCAs or process PERM audit responses will inevitably generate problems for requests for temporary and permanent immigration benefits.

    Department of State: Consular operations (both domestic and abroad) will remain fully operational as long as fees can support operations. Individuals may continue applying for visas at consular posts abroad unless and until visa application fees no longer support a post’s operations. After funds are exhausted, visa services may be limited to emergency situations. It is advisable that individuals applying for visas abroad do so as quickly as possible, and where available, seek expedited review of their applications.

    United States Citizenship & Immigration Services (“USCIS”): USCIS will see little impact to its fee-driven activities. Some delays in adjudicating petitions may occur as a result of the furlough of certain administrative support personnel. Additional delays will likely result in the adjudication of H-1B and E-3 visa petitions, which require certified LCAs by the DOL (see above regarding the DOL’s suspension of activities).

    E-Verify: The E-Verify system will not be accessible during the government shutdown. Suspended activities include enrolling in the E-Verify program, verifying employment eligibility, running reports, and taking action on any case. Additionally, employees will not be able to resolve Tentative Nonconfirmations while the system is down. USCIS acknowledges the impact caused by E-Verify’s inaccessibility, and has instituted the following policies:

    • The “Three-Day Rule”: While E-Verify is down, the three-day rule is suspended. USCIS will provide additional guidance about what to do when E-Verify reopens.

    • Resolving Temporary Non-Compliance Results: The time period during which employees may resolve temporary non-compliance results will be extended. Days during the government shutdown will not count toward the eight federal government workdays employees have to go to the Social Security Administration (“SSA”) or contact the Department of Human Services (“DHS”) for resolution. Additional time will be provided when E-Verify reopens.
    • No Adverse Action against Employees because of E-Verify Interim Case Status: Employers may not take any adverse action against employees because of an E-Verify interim case status. An interim case status refers to initial E-Verify results requiring additional action before E-Verify will provide a final case result. These include SSA or DHS Tentative Nonconfirmation, Review and Update Employee Data, DHS Verification in Process, and SSA or DHS Case in Continuance statuses.