How are immigration benefits impacted if Congress is unable to agree on a spending bill and the U.S. government shuts down? The general rule is that those services that are essential or fee-funded continue without interruption. The chart below illustrates by agency whether services are suspended:
|US Citizenship & Immigration Services||Administers fee-based immigration benefits||No|
|US Customs & Border Protection||Controls admissions at US ports-of-entry||No|
|US Immigration & Customs Enforcement||Enforces immigration laws inside the US||No|
|US Department of State||Issues nonimmigrant and immigrant visas||No|
|US Department of Labor||Administers the H-1B Labor Condition Application and Application for Permanent Employment Certification program as well as the Board of Alien Labor Certification Appeals||Yes|
|Executive Office for Immigration Review||Adjudicates immigration cases||No, not for detained docket|
|e-Verify||DHS & SSA based system for employment verification||Yes|
|Student Exchange Visitor Program||Administers the Student and Exchange Visitor program||No|
|CIS Ombudsman||Helps resolve USCIS related issues and inquiries||Yes|
From an immigration perspective, the greatest impacts of the government shut down are to the e-Verify program and any filings which contain a Department of Labor component (i.e., H-1B Labor Condition Applications, Prevailing Wage Determinations, and ETA-9089 Applications for Permanent Employment Certification).
e-Verify users are required to run checks on new employees within three (3) days of hire. However, without access to the system, employers are unable to comply with program rules and may also find themselves at odds with state laws requiring use of the program. To address the conundrum, the “three-day rule” is suspended for purposes of e-Verify submissions only (employers must still timely complete Form I-9 Employment Eligibility Verifications). Additionally, the time period during which employees may resolve Tentative Non-Confirmations (TNCs) is extended, with days the federal government is closed not counting towards the eight (8) federal government workdays the employee has to contact the Social Security Administration (SSA) or the Department of Homeland Security (DHS).
Despite these concessions, employers will remain unable to:
- Enroll in e-Verify;
- Verify employment eligibility;
- View or take action on any case;
- Add, delete or edit company information;
- Reset passwords;
- Terminate an account; or
- Run reports.
Employers should be mindful not to take any adverse action against an employee because of an unresolved TNC during this time. Employers should also be prepared to promptly submit verifications and address TNCs when e-Verify comes back on line. When specifying the reason for the delay in submission, employers should indicate “government shutdown” in the appropriate field.