• Appropriations Impasse Could Lead to DHS Shutdown, But Immigration Processing Would Continue
  • April 8, 2015
  • Law Firm: Fragomen Del Rey Bernsen Loewy LLP - New York Office
  • The ongoing debate in Congress over continued funding for the Department of Homeland Security (DHS) could lead to an agency shutdown on February 27. If this were to take place, processing of immigration applications at USCIS and ports of entry would most likely continue. The funding impasse does not affect the State Department or Labor Department, whose immigration functions should proceed normally.

    If a DHS shutdown were to occur, immigration-related operations would likely be handled as follows, based on how these issues were managed during the 2013 federal shutdown.

    USCIS Case Processing

    Processing of USCIS applications and petitions would continue during a shutdown because these operations are funded by fees rather than government appropriations. H-1B cap petitions should be processed as anticipated, even if the funding stalemate continues through the opening of the FY 2016 H-1B cap filing season on April 1.

    Though USCIS processing would continue during a shutdown, employers and foreign nationals should prepare for possible processing delays in the event that back office functions at USCIS are affected.

    Border Inspections and Case Processing

    Inspections at U.S. ports of entry would continue because they are essential security functions. Customs and Border Protection would continue to process border applications, including blanket L and initial TN cases.

    E-Verify Operations

    The E-Verify system is likely to be taken offline for the duration of a DHS shutdown. Employers would not be able to initiate E-Verify queries or resolve tentative nonconfirmations, and thus would not be required to meet their usual E-Verify deadlines. Employers would remain subject to their I-9 obligations, however.

    Government Benefits Requiring Immigration Status Verification

    Applications for government benefits that depend on immigration status verification - such as driver’s licenses and Social Security numbers - should not be affected. SAVE, the DHS system used by federal and state agencies to verify the immigration status of foreign nationals applying for benefits, should continue operating during a shutdown.

    Impact on Immigration Processing at Other Federal Agencies

    Unlike the 2013 budget stalemate, the current appropriations conflict involves only the Department of Homeland Security. Operations at the Departments of State and Labor - including visa services, labor condition application processing and PERM processing - should not be affected by a DHS shutdown.

    Fragomen is closely monitoring the Congressional debate and DHS’s plans in the event of a shutdown. We will keep you informed of future developments.