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Iowa Immigration Law Blog: The Government Shut Down: Is Immigration "Essential"? - October 2, 2013

In our view, yes. But in the federal government world, only parts of the immigration process are considered “essential” enough to proceed despite the lack of an approved budget. Even so, many immigration services continue to function.

The essential parts include most ICE functions (Immigration & Customs Enforcement). If you have an I-9 audit, you do need to respond. Also CBP functions (Customs & Border Protection) are essential. You will still be admitted to the U.S. USCIS (Citizenship & Immigration Service) is primarily fee-funded, so benefit adjudications will continue.  

However, E-Verify is not fee-funded and that system (which allows employers to verify employment authorization for new hires) has suspended operations. On their way out the door, E-Verify staff instructed that:

  • The 'three-day rule' is temporarily suspended for E-Verify only – I-9s must be completed timely.  E-Verify will provide guidance when they return.
  • Employees in process of resolving TNCs will be given additional time, including all the time the government is closed plus some additional time to be determined after re-opening.
  • Federal contractors should contact their contracting officer to inquire about extending deadlines.
  • Employers may not take adverse action against employees because of an E-Verify interim case status.

We add that employers also should not consider this an E-Verify holiday: the time will undoubtedly come when compliance is again required.

Department of Labor immigration-related programs also are not fee-funded. Therefore, both LCA and PERM processing has been shut down completely – including interactive websites. This could prove a hardship for those wanting to file an H-1B to change employers, for example, or who have a deadline for PERM filing. DOL did not give any advice regarding whether or how it might address these problems upon return. Attorney advice may be needed to navigate the consequences of DOL delays.

Department of State has some fee income that will last for an unspecified time for visa processing. However, U.S. passport issuance (despite fee income) will be affected, which could affect staffing of some consular offices.

As for immigration court, only cases in which the person is in custody will continue.  All other hearings are cancelled. Please be in contact with your immigration attorney to determine if you should attend a particular hearing, however.

The federal fiscal year is not off to an auspicious start.  But look at it this way, things can only improve . . . right?