The federal government entered a partial shutdown on December 22, 2018. With no end in sight as the shutdown enters its third week, many are wondering how the shutdown will affect immigration matters. To provide some insight on this point, the following is an overview of how immigration-related agencies operated during prior shutdown periods.
U.S. Citizenship and Immigration Services: USCIS is a fee-funded agency so if the government shuts down, it is generally business as usual. The exception to this is those programs that receive appropriated funds – E-Verify, the EB-5 Immigrant Investor Regional Center Program, Conrad 30 J-1 doctors, and non-minister religious workers. As announced by USCIS on January 20, 2018, those programs may be suspended or otherwise impacted. Note that while USCIS has not yet confirmed how cases will be processed post-shutdown, during the 2013 shutdown USCIS accepted late I-129 Petition filings provided the petition was submitted with evidence that the primary reason for failing to timely file an extension of stay or change of status request was the government shutdown.
U.S. Department of State: Visa and passport operations are fee-funded and should not be impacted by a lapse in appropriations, but Ulmer’s immigration team is monitoring the situation closely. If visa operations are affected, consular posts will generally only handle diplomatic visas and “life or death” emergencies.
U.S. Customs and Border Protection (CBP): Inspection and law enforcement personnel are considered “essential.” Ports of entry will be open; however, processing of applications filed at the border may be impacted.
U.S. Immigration and Customs Enforcement (ICE): ICE enforcement and removal operations will continue, and ICE attorneys will typically focus on the detained docket during a shutdown. The ICE Student and Exchange Visitor Program (SEVP) offices are unaffected since SEVP is funded by fees.
Executive Office for Immigration Review (EOIR): Immigration court cases on the detained docket will proceed during the lapse in congressional appropriations while non-detained docket cases will be reset for a later date when funding resumes. Courts with detained dockets will receive all filings, but will only process those involving detained dockets. Courts with only non-detained dockets will not be open and will not accept filings. Members may want to check with their local chapters for court-specific instructions.
Department of Labor (DOL): The Office of Foreign Labor Certifications (OFLC) would likely cease processing all applications in the event of a government shutdown, and personnel would not be available to respond to e-mail or other inquiries. OFLC’s web-based systems, iCERT and PERM, would be inaccessible, and Board of Alien Labor Certification (BALCA) dockets will be placed on hold.
The resource for this Client Alert is the American Immigration Lawyers Association.