Impact of Partial Government Shutdown on Immigration

December 26, 2018
Beata Leja

As of December 22, 2018, the U.S. federal government is partially shut down because President Trump refuses to sign a budget bill that does not also include an extra $5 billion in funding to build a border wall between the U.S. and Mexico. The President does not have the votes in Congress to pass such bill, which is expected to become even more difficult once Democrats take over the House of Representatives in January 2019. It is unknown how long the impasse will last, but some speculate that it could be a few weeks or even months. This means that many government offices have closed, or remain open but only to perform limited essential functions. This federal shutdown impacts our country’s immigration system in the following ways:

Customs & Border Protection (“CBP”): CBP will remain completely operational, meaning that airports, seaports, and other ports of entry to the U.S. will continue to be fully staffed, and individuals are able to proceed with international travel without any disruption. The CBP website, however, will not be maintained during the shutdown, and so some individuals may experience issues in retrieving their I-94 records online.

U.S. Citizenship & Immigration Services (“USCIS): All USCIS fee-based programs are unaffected because they are funded by fees paid by applicants for immigration benefits. USCIS offices are open and individuals should appear for their interviews and appointments as scheduled (eg. biometrics appointments, adjustment of status interviews, naturalization interviews, Infopass appointments, etc.)

Some other USCIS programs, however, are suspended until they receive appropriated funds or are reauthorized by Congress. These include:

(1) E-Verify for Employers: E-Verify is currently unavailable and cannot be utilized at this time for employment verification. All deadlines typically required by E-Verify are suspended during the shutdown.

(2) Conrad 30 (J Waivers for Physicians): The shutdown affects the date by which the J-1 doctor must have entered the U.S. The program is not shut down entirely.

(3) Non-Minister Religious Worker Green Cards

(4) EB-5 Regional Centers for Investors

Finally, the USCIS Ombudsman’s office is closed and has stopped accepting new and pending requests for assistance.

Department of State (“DOS”): The DOS, which operates the U.S. Embassies and Consulates abroad and issues U.S. passports and non-immigrant and immigrant visas, will remain fully functional for the time being. All consular appointments for December 26th and beyond remain valid. Applicants are encouraged to use the day before, and day of, their appointment to verify that the appointment is still active. It is unclear how long that will continue. Expect slowdowns at the National Visa Center (NVC) in New Hampshire, which processes immigrant visa (IV) applications in preparation for an interview.

Executive Office for Immigration Review (“EOIR”): The EOIR, which operates the immigration courts in the U.S., has furloughed all non-essential personnel, meaning most scheduled court hearings (ex. Master Calendar, Individual Hearing, etc.) will not take place during the shutdown and will be rescheduled. Cases involving individuals currently detained in custody are considered essential and hearings will proceed as scheduled. Additionally, the Board of Immigration Appeals (BIA) will only process emergency stay requests as well as cases involving a detained individual. However, all other processing will be delayed.

Department of Justice (“DOJ”): The Judiciary remains open and can continue operations for approximately 3 weeks, through Jan. 11, 2019, by using court fee balances and other funds not dependent on the new budget. Beyond this date, each court will determine which staff must stay in place in order to remain minimally operational. Lawsuits filed against the federal government, where the attorney representing the federal government is not working because of the shutdown (e.g. mandamus suits against the USCIS) may be delayed as hearing and filing dates may be rescheduled.

Immigration & Customs Enforcement (“ICE”): ICE’s detention and enforcement operations will continue during the shutdown.

Department of Labor (“DOL”): The DOL will continue unaffected until September 30, 2019 because it has received separate funding from a “minibus” funding bill signed into law in September 2018. This means that there will be no impact to new or pending Labor Condition Applications (LCAs), applications for prevailing wage determinations, applications for labor certification (PERM), and PERM audit responses.

Social Security Administration (“SSA”): SSA will continue unaffected and will issue Social Security numbers and cards, as well as replacement cards.

We will communicate further updates regarding the impact of the shutdown on immigration as they become available.

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