- A Potential Federal Government Shutdown: The Immigration Implications for Employers
- September 25, 2015 | Authors: Charles Edward Gillman; Ceridwen J. Koski
- Law Firms: Ogletree, Deakins, Nash, Smoak & Stewart, P.C. - Raleigh Office ; Ogletree, Deakins, Nash, Smoak & Stewart, P.C. - Denver Office
- Congress has until September 30, 2015 to reach an agreement on the 2016 Fiscal Year federal budget. If an agreement to fund the federal government is not reached, immigration processes are expected to be impacted as they were in the shutdown that occurred in October of 2013. Some federal agencies that rely solely on government funding would not be able to provide most services. Agencies that receive funding from fees or other government sources are expected to remain open, but they will probably experience service delays.
We predict immigration processes would be impacted as described below.
PETITIONS FILED AT USCIS
U. S. Citizenship and Immigration Services (USCIS) is funded in significant part by filing fees from users and would continue to process petitions and applications. However, USCIS would likely suffer delays since other federally funded government agencies, such as the U.S. Department of Labor (DOL), provide information required for some USCIS filings.
A shutdown would likely cause the DOL to suspend processing of PERM applications (for labor certifications of immigrant visas) and prevailing wage requests. Delays in processing applications and requests and agency backlogs would likely increase after the federal government’s financing is restored so applications and prevailing wage requests that are ready to file should be submitted prior to September 30, 2015, if possible.
H-1B, H-2, AND E-3
A shutdown would impact any visa process that requires a Labor Condition Application (LCA) or prevailing wage determination, such as an H-1B or H-2 visa. In the past, USCIS has been flexible in accepting petitions even when the DOL could not provide the underlying LCA certification. However, applicants for E-3 visas who are unable to obtain a certified LCA will be unable to apply for an E-3 visa at a U.S. Consulate.
VISA APPLICATIONS AT U.S. CONSULATES ABROAD
Based on past experience, U.S. Consulates would likely continue to process visa applications. However, because consulates receive federal funding in addition to funding through fees, it is unclear how long consulates would be able to sustain visa services following a government shutdown.
Because security checks are administered by various federal government agencies that would be affected by a shutdown, security checks—which are required for all visa applications at U.S. consulates and for some USCIS applications—might be delayed in the event of a shutdown.
CANADIAN BORDER APPLICATIONS
The federal government deems U.S. Customs and Border Protection (CBP) officers to be essential personnel needed to process flight arrivals, so it is unlikely that port operations would be significantly impacted by a shutdown. Border ports would likely remain open to process Canadian nonimmigrant petitions. However, because CBP operates mostly from federal funding, employers should consider filing petitions with USCIS service centers as an alternative to a border application, where possible.
SOCIAL SECURITY NUMBERS
The U.S. Social Security Administration is unlikely to process applications for new Social Security numbers during a shutdown. An employee may begin working without a Social Security number. However, an employee’s ability to obtain other benefits without a Social Security number might be limited in the event of a shutdown.
State governments that use federal databases to verify a foreign national’s immigration status would likely have reduced access to those databases during a shutdown. A shutdown is likely to cause delays or suspensions of service from state agencies, including in the processing of driver’s license applications. H-1B LCA processing delays could cause applicants to be unable to renew their driver’s licenses in states that will only renew licenses based on USCIS H-1B approval notices.
E-Verify could be impacted by a shutdown, but USCIS may be able to find a work-around to help businesses continue to determine the eligibility of their employees to work in the United States, for example, by suspending the “three-day rule” associated with the I-9 process and extending the time period during which employers may resolve Tentative Non-Confirmations (TNCs).
Employers with employees—who would be furloughed—working on government contracts could require affected H-1B employees to use their accrued vacation time during a furlough. However, a long-term shutdown could cause H-1B workers to exhaust the vacation time that they have accumulated, in which case employers would need to continue to pay their H-1B employees’ salaries through the remainder of a furlough (or terminate the employment relationship).