Protection for DREAMers and Other Immigration Programs Hang in the Balance of Negotiations to Avoid

As has been widely reported in the press, the federal government will “shut down” if Congress is unable to pass a legislation to fund the government by midnight tonight. Whether such a bill passes depends in large part on whether Congress is able to agree on legislation to protect the so-called “DREAMers,” who have benefited from Obama’s Deferred Action for Childhood Arrivals (DACA) program. The Trump Administration announced in September 2017 that it would rescind the DACA program, effective on March 5, 2018. If replacement legislation is not passed prior to this date, over 700,000 DACA recipients may lose the ability to renew work authorization and be faced with the the risk of deportation. While the fate of DACA protection is at the center of government funding negotiations this year, a shutdown would impact other immigration programs more immediately by cutting off financial resources, and mandating government employee furloughs. Based on the experience from previous federal government shutdowns, we provide below a summary of the expected immigration-related consequences that a shutdown would have. Substantial Immigration-Related Impact Labor Condition Applications and PERM Labor Certifications: In the event of a DOL shutdown, it may not be possible to file Labor Condition Applications (LCAs), or for DOL to process pending LCAs. This would impact employers’ ability to file H-1B petitions, and foreign nationals’ ability to apply for E-3 and H-1B1 visas. It may also not be possible to file Applications for Prevailing Wage Determination or Permanent Labor Certification (“PERM”), or for DOL to process pending applications. Moreover, because DOL would not have a functioning mailroom and applications, responses submitted via mail or courier service would therefore not be receipted or processed. In addition, the DOL’s Office of Foreign Labor Certification (OFLC) website, including the iCERT Visa Portal System and PERM system, may be down, and users may be unable to log into online accounts. Please note that any DOL-related deadlines that take place during the shutdown would be suspended. E-Verify: The E-Verify program, which is run by the U.S. Citizenship and Immigration Services (USCIS), would likely not remain operational in the event of a government shutdown. Note that this would not relieve employers of their verification responsibilities. If the E-Verify automated system is temporarily unavailable, the 3-day period for verification is extended until the system is once again available, which will accommodate the employer’s good faith attempt to make inquiries during the shutdown. Minimal Immigration-Related Impact USCIS Adjudications: USCIS is funded through fee-based petitions and applications, and would therefore likely remain operational in the event of a shutdown. However, if the shutdown results in staffing shortages, this may result in processing delays to case adjudication. Passport and Visa Issuance: In the event of a federal government shutdown, the DOS—which issues visas and passports to U.S. citizens overseas at U.S. embassies and consular posts abroad—may operate on a more limited basis. Many passport and visa applications are fee-based, and these fees provide a source of funding that is independent from the fiscal budget. Nevertheless, reduced federal funding may result in a slowdown of non-emergency passport and visa processing. Customs and Border Protection: The majority of U.S. Customs and Border Protection (CBP) operations are considered to be essential functions and would therefore remain operational in the event of a shutdown. However, if the shutdown results in staffing shortages, this could result in delays for foreign nationals seeking admission to the U.S. from abroad, as well as foreign nationals applying for specific nonimmigrant status at the port of entry. Please contact our office should you have any questions regarding the potential shutdown. We will provide more information as it becomes available.

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