Lapse in Federal Funding for Certain USCIS Operations

The current lapse in annual appropriated funding for the U.S. government does not affect USCIS’ fee-funded activities. Our offices will remain open, and all applicants should attend interviews and appointments as scheduled.

However, several USCIS programs will either expire or suspend operations, or be otherwise affected, until they receive appropriated funds or are reauthorized by Congress. These include:

• EB-5 Immigrant Investor Regional Center Program. Regional centers are a public or private economic unit in the United States that promote economic growth. USCIS designates regional centers for participation in the Immigrant Investor Program.
• E-Verify. This free internet-based system allows businesses to determine the eligibility of their employees to work in the United States.
• Conrad 30 J-1 doctors. This program allows J-1 doctors to apply for a waiver of the two-year residence requirement after completing the J-1 exchange visitor program. The expiration only affects the date by which the J-1 doctor must have entered the United States; it is not a shutdown of the Conrad 30 program entirely.
• Non-minister religious workers. This special immigrant category allows non-ministers in religious vocations and occupations to immigrate or adjust status in the United States to perform religious work in a full-time, compensated position.

Generally, if the government shuts for budgetary reasons, all but "essential" personnel are furloughed and are not allowed to work.

• January 21, 2018 Update: USCIS has confirmed that DACA renewal processing will continue.

DOS: Visa and passport operations are fee-funded and should not be impacted by a lapse in appropriations, but operating status and funding will need to be monitored closely. If visa operations are affected, consular posts will generally only handle diplomatic visas and "life or death" emergencies.

CBP: Inspection and law enforcement personnel are considered "essential.” Ports of entry will be open; however, processing of applications filed at the border may be impacted.

ICE: ICE enforcement and removal operations will continue, and ICE attorneys will typically focus on the detained docket during a shutdown. The ICE Student and Exchange Visitor Program (SEVP) offices are unaffected since SEVP is funded by fees.

EOIR: EOIR's detained docket is typically considered an essential function and would therefore continue to operate. During the 2013 shutdown, EOIR continued to accept court filings, even in non-detained cases.

**DOL: The OFLC would cease processing all applications in the event of a government shutdown, and personnel would not be available to respond to e-mail or other inquiries. OFLC's web-based systems, iCERT and PERM, would be inaccessible, and BALCA dockets will be placed on hold. - This means no labor certification processing until the government shutdown is over.

CIS Ombudsman: The DHS Office of the CIS Ombudsman would close and would not accept any inquiries through its online case intake system.

Hardship Created by Visa Deadline Revision

16 House Democrats expressed their disappointment in a letter to Department of Homeland Security’s Jeh Johnson and Secretary of State John Kerry, and urged U.S. Department of Homeland Security (DHS) and U.S. Department of State (DOS) to make up for the hardship created by the visa deadline revision for highly skilled workers in the employment-based immigrant categories.

On September 9th, the monthly visa bulletin made a significant change in the process of filing for immigrant visa applications. Before, the visa cutoff dates were based on a single chart system, which governed both the visa issued date and the application filing date. With the new change, the visa bulletin system now runs on two charts system; “Application Final Action Dates,” which shows cutoff dates that govern when visa can be issued and the new chart, “Dates for Filing,” showing cutoff dates for when application can be filed.  

The new chart is significant because the cutoff dates are later than the dates in the original charts. This means that immigrants with later priority dates can submit their application much earlier.  

However, after releasing the October visa bulletin with the newly implemented system, State Department revised the October Bulletin cutoff dates for “Dates for Filing” chart. The revision setback the cutoff dates for EB-2 Visa applicants from India by two years and EB-2 Visa applicants from China by 16 months.  

The sudden revision for “Dates for Filing” chart caused “hardships” to numerous applicants who thought they qualified according to the previous indicated date. These applicants already paid for medical examinations and attorney’s fees.

The 16 House Democrats urged the State Department to make up for the “hardships” caused by the recent revision.

Reps. Zoe Lofgren and Mike Honda, D-Calif., who said to represent the districts Silicon Valley district, led the letter writing to DHS. The letter mentions that the “current visa backlog and restrictions already create incentives for skilled foreign workers to leave the (U.S.) and take their skills to other countries that offer more competitive immigration programs.”

The letter to the DHS mentioned that the EB-2 visa applicants from countries like India and China should implement methods to give permission to legally work under certain qualifying condition. In addition, a revision of “an extraordinary circumstance” beyond the control of applicants filing late request to extend their nonimmigrant statuses was requested as well.

The 16 House Democrats are pushing the concept of “moving forward with real, lasting comprehensive immigration reform” and not continuing to “roll back the clock on our immigration policies.”

Prepare Now for a Possible DOL Shutdown

AILA (American Immigration Lawyers Association) is reporting that there may be a Department of Labor Shutdown as of 10/1/2015 if the budget is not approved before then - which would have dire consequences to PERM, Prevailing Wage Determination, Labor Condition Application processing, etc.

AILA Doc No. 15092311 | Dated September 23, 2015

Though Congress is continuing to negotiate on the FY2016 budget, if no agreement is reached, no Continuing Resolution is passed, or no other stopgap method implemented, we will unfortunately be faced with a government shutdown on October 1, 2015, similar to that which occurred in October 2013 (AILA Doc. No. 11040730). While we are hopeful that this will not happen, and a legislative vehicle in the form of a Continuing Resolution to avoid a shutdown is in play, the DOL Liaison Committee nonetheless reminds AILA members of steps that can be taken now to prepare for that risk.

OFLC functions are not "excepted" from a shutdown and its employees would be placed in furlough status should a lapse in appropriated funds occur. Consequently, in the event of a government shutdown, OFLC will not accept applications or related materials (such as audit responses) as of October 1, nor will it process those already received, including Labor Condition Applications, Applications for Prevailing Wage Determination, Applications for Temporary Employment Certification (H-2A/H-2B), or Applications for Permanent Employment Certification. Furthermore, DOL’s online systems (iCERT and PERM) will not be operational and will not accept PERM, LCA, or prevailing wage applications, and authorized users will not be able to access their online accounts.

Therefore, any critical PERM, H-2A, or H-2B applications that can be filed before October 1 should be filed. Any certified LCAs or prevailing wage determinations needed for filings after October 1 should be printed from iCERT so that they are available for use. If there is a shutdown, DOL would not have a functioning mailroom and would not be able to receive or process PERM audit responses or other applications received in the mail. While DOL made accommodations in 2013 to accept applications that were affected by the shutdown, there is no way to be certain it will do so again (AILA Doc. No. 13110143).