United States - Government Shutdown Ends: What to Expect in Early February

The two major political parties in the U.S. have reached a temporary agreement to fund the government through Thursday, February 8.  The two primary compromises that had to be made in order for the temporary spending bill to pass were (1) reauthorization of the Children’s Health Insurance Program (CHIP) for six years, and (2) an agreement to continue working on a bipartisan plan for Deferred Action for Childhood Arrivals (DACA) recipients (commonly referred to “dreamers”). While this is good news in the immediate for immigration cases currently pending with the Department of Labor (DOL), Immigration and Customs Enforcement (ICE), and other non-fee-based agencies, the temporary measure includes no promise of a vote or any concrete terms on DACA. Due to the widening gaps in immigration policy between the right and left of the aisle, another shutdown is possible next month.

We have learned from prior periods of government shutdown, and from the shutdown this past weekend, what immigration-related processes are impacted most. An important distinction in treatment during a shutdown is made between fee-based services, such as visa processing by the U.S. Citizenship and Immigration Services (USCIS) and the Department of State (DOS), and primarily government-funded services, such as foreign labor certifications process by the Department of Labor (DOL). Additionally, there is a difference in impact to benefits- or services-related functions versus enforcement-related functions, which are typically considered to be “essential”, even during a government shutdown.  

For visa and green card cases already pending with USCIS, the impact of a shutdown is minimal, as these benefits are processed by a wholly fee-based operation.  For cases not yet filed with USCIS, the impact may also be minimal; however, any H-1B, E-3, H-1B1, or H-2A/B cases being prepared for filing with USCIS would be impacted if the prerequisite DOL certification for those visa categories is not issued prior to the shutdown. Nonimmigrant and PERM filings not yet filed with DOL when a shutdown occurs will feel an immediate impact, as the online portals through which those filings are made are the first to be disabled. Additionally, DOL goes through a significant staff furlough during a shutdown, deeming the majority of personnel processing immigration-related filings to be “non-essential”, which slows the processing of pending cases to a near standstill.

In contrast to USCIS benefits processing, the Agency’s automated work authorization verification system, E-Verify, is impacted by a shutdown, as the E-Verify system is free to use and therefore funded primarily by the federal government. During a shutdown, employers who use E-Verify to process the work eligibility verification for new and existing employees are unable to run new queries or process tentative non-confirmations (TNCs). These employers must revert to the manual I-9 procedure, or some other comprehensive manual recording system, to maintain a history of all E-Verify actions taken during a shutdown to be entered at a later date.

Another agency with significant furloughs during a government shutdown is ICE. Most are aware of ICE’s relationship to criminal investigations, immigration enforcement actions, and cases pending with the Executive Office for Immigration Review (EOIR) courts. However, ICE also maintains some benefits-related services, including, most notably, the Student & Exchange Visitor Information System (SEVIS). During a government shutdown, the SEVIS web portal and services for F-1 and M-1 foreign students and J-1 exchange visitors remains operational because it is a fee-based service.

The impact of a short-term shutdown is generally minimal to consular services provided by the DOS, since visa services are partially funded by fees and most diplomatic personnel stationed abroad are considered to be “essential” during a shutdown. However, reduced staffing and fiscal conservatism during a longer shutdown can lead to a reduced calendar, extending the wait time for a visa interview. Additionally, visa processing can be slower during a prolonged shutdown. Customs and Border Protection (CBP) is largely unaffected for the similar reasons that most border and airport CBP personnel are considered to be “essential” and the limited visa processing completed by CBP directly at Canadian and Mexican ports of entry to the U.S. is supported by fees.

It remains to be seen how the DACA debates will play out in Congress as well as in our federal courts, but if no meaningful compromise is found between now and February 8, we most certainly will need to prepare ourselves for the second shutdown of the current Administration.