Potential Government Shutdown Effect on Immigration Agencies
There has been much speculation in the news that the federal government is headed for a shutdown starting October 1, 2023, if Democrats and Republicans fail to agree on annual spending or reach a continuing resolution to temporarily fund the federal government.
When this has happened in the past, the contingency plans for each federal agency have varied. The White House keeps an updated page on its website with each agency’s plan for a federal government shutdown.
Here is an overview of the immigration agencies:
· U.S. Citizenship & Immigration Services (USCIS). USCIS is funded by user fees and does not depend on federal funds for its operations. Processing of all applications and petitions is expected to continue. The only exception is if a petition or application requires the certification of another affected federal agency, such as an H-1B petition that requires certification by the Department of Labor (DOL).
· Department of Labor (DOL). The Office of Foreign Labor Certifications (OFLC) oversees most immigration processes and is part of the DOL, which has typically been closed during government shutdowns. DOL will likely not accept or process any Labor Condition Applications (LCAs), Prevailing Wage Determinations, or Applications for Permanent Employment Certification (PERM).
Additionally, as mentioned above, the operational status of DOL impacts USCIS petitions that require a certified LCA (H-1B, H-1B1, and E-3 visa petitions). Historically, USCIS would temporarily allow an exemption to the LCA requirement for status maintenance filings. Similarly, the DOL’s status may impact the timing requirements of PERM applications. In the past, DOL has extended any deadlines that fell during a government shutdown.
· Department of State (DOS). Consular operations and visa issuance may or may not be operational during a shutdown. DOS maintains a small reserve of funds for continued operations. However, the Department of State has reduced or halted visa issuance during prior shutdowns. Employees with international travel plans that would require them to obtain a new visa stamp while abroad should monitor the situation closely and may need to cancel their travel plans or risk being unable to return to the United States.
· Customs and Border Protection (CBP). Borders will remain open and CBP will be operational, so individuals entering with a valid visa should not encounter any issues with ports of entry. However, individuals who plan to apply for an immigration benefit at a port-of-entry or a pre-clearance facility (such as TNs and L-1s for Canadian nationals) will need to check the operational status of the location at which they intend to apply for the latest information.
· E-Verify. E-Verify is unavailable during a government shutdown. As a result, E-Verify employers will not be able to verify employment eligibility or take any other action in E-Verify. The three-day rule for E-Verify cases will be suspended, and the time during which employees may resolve Tentative Nonconfirmations will be extended. Employers are not permitted to take any adverse action against an employee whose query is in an extended interim case status due to the government shutdown. The government will release additional information on how to address situations that cannot adhere to traditional E-Verify deadlines if or when a shutdown occurs. This disruption does not affect I-9 obligations.
It is important to check each agency’s contingency plan as the situation unfolds because as mentioned, shutdown operations have varied with each presidential administration.
Details:· Agency Contingency Plans, The White House, whitehouse.gov
Department of Homeland Security Proposes Rule to Modernize H-1B Regulations
On September 19, 2023, the Office of Management and Budget (OMB) received a proposed rule from the Department of Homeland Security (DHS) to amend regulations governing H-1B specialty occupation workers and F-1 students who are beneficiaries of timely filed H-1B cap-subject petitions.
DHS proposes to revise regulations relating to the employer-employee relationship and flexibility for start-up entrepreneurs, implement new requirements and guidelines for site visits in connection with petitions filed by H-1B dependent employers whose basic business information cannot be validated through commercially available data, and provide flexibility on the employment start date listed on the H-1B petition in limited circumstances. The proposed rule also includes details on addressing cap-gap issues for F-1 students changing to H-1B status, reducing misuse and fraud in the H-1B registration system, and clarifying the requirement that an amended or new petition be filed where there are material changes, including streamlining notification requirements relating to certain worksite changes, among other provisions.
After OMB reviews the proposed rule, it will be published in the Federal Register for public comment.
Details:· Reginfo, Proposed Rule (Sept. 19, 2023) · Reginfo, Pending Review (Sept. 19 2023)