• Federal Budget Debate Could Lead to Government Shutdown and Suspension or Delay of Immigration Services
  • October 3, 2016
  • Law Firm: Fragomen Del Rey Bernsen Loewy LLP - New York Office
  • A last-minute debate over the FY 2017 budget has intensified in Congress, raising the possibility of a federal government shutdown and the suspension or delay of some immigration functions as of October 1. Though a shutdown is by no means certain, employers should be prepared in the event that Congress does not reach agreement on a spending bill or stopgap measure by September 30.

    In addition, Congress has yet to agree on whether to extend 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, the non-minister religious worker permanent residence program and the cap exemption for returning H-2B temporary nonagricultural workers. If these programs are not reauthorized or temporarily extended, they will terminate on September 30.

    IMMIGRATION IMPACT OF A FEDERAL SHUTDOWN

    Immigration operations would likely be handled as follows in the event of a shutdown and continued impasse on expiring immigration programs.

    Department of Labor

    In the event of a shutdown, DOL’s Office of Foreign Labor Certification would suspend all operations. No PERM applications, labor condition applications (LCAs), prevailing wage requests or applications for temporary labor certification would be processed. Online application systems would be turned off and would not be able to accept PERM, LCA or prevailing wage filings. The agency would be unable to process PERM audit responses or other submissions by mail.

    Employers who have an imminent need for LCAs should expect delays if they have not already filed. Because LCAs take up to seven business days to be certified, cases that are not already in process may not be completed by September 30. This could have a critical impact on H-1B, E-3 and H-1B1 employees who will need an extension of stay filed on their behalf in the coming weeks. Employers with already approved multislot LCAs may be able to use them to meet urgent needs.

    Employers with due dates for PERM filings or audits in October should discuss options with their Fragomen team. DOL could offer an accommodation to those with deadlines that fall during a shutdown, but would probably not provide information on grace periods until after its operations resumed.

    U.S. Citizenship and Immigration Services

    USCIS should continue to process application and petitions for immigration benefits during a 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 - for which a DOL-certified LCA is required - may be affected. In the past, USCIS has temporarily accepted extensions without a certified LCA in some circumstances, but such an accommodation cannot be guaranteed.

    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.

    If the E-Verify program is not reauthorized by September 30, employers who participate in the system would no longer be obligated to submit employment verification queries. If the EB-5 Regional Center program lapses on September 30 , USCIS would cease to accept petitions and applications for adjustment of status under this category. Similarly, Conrad 30 waiver applications and non-minister religious worker petitions would not be accepted.

    Employers seeking to hire H-2B returning workers - those who were previously counted against the H-2B cap during fiscal years 2013, 2014 or 2015 - should continue to identify these workers in petitions submitted to USCIS, in the event that the cap exemption for these individuals is reauthorized.

    Department of State

    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

    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

    The Social Security Administration would not process applications for Social Security numbers or replacement cards during a shutdown.