Effects of a Government Shutdown on Immigration Processing and Programs

After a contentious White House meeting yesterday, news reports are speculating that Republicans and Democrats might not be able to reach agreement on spending bills for several immigration-related agencies after December 21. Unlike past shutdowns, full funding for the Department of Labor was passed in September this year.
While it is still too soon to know whether a shutdown will actually happen and how long it will last if it does, we are aware that clients may be concerned about the effect of a shutdown on immigration processing, particularly given how many clients travel at this time of year. There are also four immigration programs, including the EB-5 Regional Center program, whose statutory authorization is tied to the remaining government funding bills.
International travel may be the immigration function most immediately impacted. For clients traveling internationally who have an unexpired visa, there will likely be no effect. In prior government shutdowns, U.S. Customs and Border Protection has continued to operate normally at all ports of entry and border posts because these employees were considered essential government personnel, necessary for national security. It is, of course, possible that the current administration could try to limit the scope of CBP operations at airports during any shutdown, potentially making travel by nonimmigrant visitors and workers more difficult.
For clients traveling internationally who were planning to renew a nonimmigrant visa while abroad, a shutdown could delay their return to the United States. The State Department funding bill has not been passed, and consular operations have been subject to prior government shutdowns. American citizen services have continued overseas as an “essential” government function. Visa issuances and consular interviews, however, will likely be suspended with only very limited (humanitarian emergency) exceptions. Clients planning overseas travel during the next few weeks who need a new visa stamp to reenter the United States should note that their consular interviews should be scheduled as far before December 21 as possible. Since visas normally take 1-2 business days at least to be issued, even travelers with interview dates early in the week of December 17 could be delayed in receiving their visas. Appointments after December 21 may be cancelled and seriously delayed.
Clients needing extensions of stay or changes of employer in the United States will likely not be affected. In prior government shutdowns, USCIS has been open with business as usual even when the rest of the U.S. federal government shuts down. USCIS is a fee-based government agency, and therefore a government shutdown should not affect the agency’s normal operations. The current administration, however, could issue a different legal interpretation and require USCIS to shut down as part of the government shutdown. Since U.S. Department of Labor has had its full year funding authorized, however, it should not cease operations the way it did during prior shutdowns, meaning that Labor Condition Applications (LCAs) and labor certification (PERM) applications should be able to be filed after December 21.
In addition to the disruption of agency operations, clients using one of four immigration programs will likely not be able to use those programs during any shutdown. For clients who use E-Verify when hiring new workers, the system will not be operational during a government shutdown. Employers will have to make a plan to run E-Verify checks after the shutdown for new hires during the shutdown, since workers can be hired and an I-9 can be completed for them, but the E-Verify system will be unavailable.
Clients will also be unable to file I-526 petitions for investor immigration status if they are applying pursuant to the Regional Center program. Other EB-5 petitions can be filed during the shutdown, but the statutory authorization for the EB-5 Regional Center program will be suspended during the shutdown. Similarly, H-1B petitions under the Conrad 30 J-1 Waiver program for physicians and petitions under the Special Immigrant Nonminister Religious Worker program will be suspended during the shutdown.
If Congress and the President are unable to reach an agreement, the federal government will close at midnight December 22. For more updates, visit us online at www.klaskolaw.com or contact your Klasko attorney today.

The material contained in this article does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.

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