What Happens if the Government Shuts Down?

AILA Doc. No. 17042640 | Dated December 17, 2018

December 17, 2018 UPDATE: Congressional

negotiations on federal spending for the remainder of FY 2019

remain very active. If Congress and the President can’t come

to an agreement on a spending bill or continuing resolution by

midnight December 21, 2018, approximately 25 percent of government

functions will shut down. When it comes to immigration, agencies

that would be impacted by a government shutdown include the

Department of Homeland Security and its

immigration-related components (CBP, ICE, USCIS, CIS

Ombudsman), the Department of Justice (EOIR), and the

Department of State. See below for information as

to how these agencies operated during prior shutdown periods. We

will update this page with additional information from the agencies

as it becomes available.

Note, however, that the Department of Labor

(DOL) would not be impacted by a government shutdown. On

September 28, 2018, President Trump signed a minibus appropriations

bill funding DOL through the end of September 30, 2019.

January 22, 2018: Generally, if the government

shuts for budgetary reasons, all but “essential”

personnel are furloughed and are not allowed to work.

USCIS: 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, in 2013, USCIS accepted late I-129 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.

January 21, 2018 Update: USCIS has confirmed

that DACA renewal processing will continue.

January 22, 2018 Update: USCIS confirmed that

myE-Verify services are unavailable, including

myE-Verify accounts, Self Check, Self Lock, Case History, and Case

Tracker. USCIS also confirmed that E-Verify is unavailable, which means that

employers will not be able to access their E-Verify accounts and

Customer Service is closed. USCIS implemented temporary policies during

the shutdown, including suspending the “three-day

rule,” extending the time in which employees may resolve

Tentative Nonconfirmations (TNCs), and confirming that employers

should not take adverse action against employees due to an interim

case status during this time.

DOS: Visa and passport operations are

fee-funded and should not be impacted by a lapse in appropriations,

but operating status and funding will need to be monitored closely.

If visa operations are affected, consular posts will generally only

handle diplomatic visas and “life or death”

emergencies.

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.

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.

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.

DOL: The OFLC would 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 BALCA dockets will be placed on hold.

CIS Ombudsman: The DHS Office of the CIS

Ombudsman would close and would not accept any inquiries through

its online case intake system.

The content of this article is intended to provide a general

guide to the subject matter. Specialist advice should be sought

about your specific circumstances.

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