Immigration Processing Impacted by Government Shutdown

By Roy Maurer Oct 3, 2013

The Oct. 1, 2013, shutdown of the U.S. federal government has impacted immigration services across the gamut of related agencies, slowing or stopping employment verification, visa issuance and labor certifications.

“Immigration-related services can be broken down into three basic categories: security, fee-paying, and nonfee paying,” said Susan Cohen, the founder and chair of Mintz Levin’s Immigration Practice, based in Boston. “We expect continued service for immigration services considered vital to national security, delays in fee-paying activities, and stoppage of work for nonfee paying services,” she said.

Here’s how the shutdown will impact the various agencies that deal with immigration.

Enforcement Considered Essential, E-Verify Goes Dark

Most of the Department of Homeland Security’s immigration-enforcement employees (Customs and Border Protection, Immigration and Customs Enforcement) are considered “essential” and will remain on the job protecting the country’s borders and enforcing immigration laws.

“ICE Enforcement and Removal Operations, as well as ICE Homeland Security Investigations will remain operational under a government shutdown because they have been deemed law enforcement necessary for the safety of life and protection of property,” ICE spokeswoman Gillian Christensen said in a news statement.

U.S. Customs and Immigration Services (USCIS) operations will largely continue despite the federal government shutdown, because fee-for-service activities performed by USCIS are not affected by a lapse in annual appropriated funding. “All USCIS offices worldwide are open for interviews and appointments as scheduled,” the agency reported. However, Cohen said employers should expect delays in processing, as some support staff may be furloughed.

E-Verify, the federally funded electronic employment verification program, is the exception and will be unavailable for the duration of the shutdown. Employers should continue to complete I-9 forms when hiring, and defer E-Verify processing until the program resumes.

The USCIS Ombudsman’s Office, which assists individuals and employers in resolving problems with USCIS, has closed.

Department of Labor Suspends Operations

The Department of Labor’s (DOL) immigration processing was suspended Oct. 1.

Employers will not be able to access the department’s iCERT or PERM websites, affecting PERM labor certifications, labor condition applications (required for H-1B visas), and prevailing wage determinations until the government is reopened.

The Department of Labor’s Office of Foreign Labor Certification (OFLC) posted this on its website Sept. 27: “In the event of a government shutdown, OFLC will neither accept nor process any applications or related materials (such as audit responses) it receives, including Labor Condition Applications, Applications for Prevailing Wage Determination, Applications for Temporary Employment Certification, or Applications for Permanent Employment Certification. OFLC’s website, including the iCERT Visa Portal System, would become static and unable to process any requests or allow authorized users to access their online accounts.”

DOL has not made any announcements regarding concessions for employers with expiring recruitment or prevailing wage determinations or for H-1B workers with expiring visa status.

“We expect a backlog to grow with each day of the government shutdown,” said Cohen. “This will negatively impact both pending applications and those filed after the resumption in government services,” she warned.

Consular Processing to Continue

Just like USCIS, visa application processing with the State Department is funded by fees, so as long as the funds last, business can continue. The State Department reported that “consular operations domestically and overseas will remain 100 percent operational as long as there are sufficient fees to support operations. However, if a passport agency is located in a government building affected by a lapse in appropriations, the facility may become unsupported. The continuance of consular operations in such instances will be treated on a case-by-case basis.”

Roy Maurer is an online editor/manager for SHRM.

Follow him at @SHRMRoy.

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