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Greg Siskind on Immigration Law and Policy

What Does the Government Shutdown Mean For Immigration Processing?

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Well, it's about an hour away from the deadline to pass a stopgap spending bill and it looks like Congress is not going to be able to get it together. Government agencies haven't had to deal with this in 20 years and the last time the government shut down like this, there was no ICE, USCIS or CBP - just the old INS. Here's how I described that shutdown's impact on immigration back then.

So what can we expect? Well, here's a roundup of how different agencies are expected to handle the crisis.

The Department of Labor has posted this on its web site:
The Administration is working very hard to avoid a government shutdown and believes there is sufficient time to avoid such an occurrence; however, prudent management requires the Department to plan for the possibility that it may need to suspend operations should Congress be unable to pass a funding bill by midnight on Monday, September 30, 2013.

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 neither accept nor process any applications or related materials (such as audit responses) it receives, including Labor Condition Applications, Applications for Prevailing Wage Determination, Applications for Temporary Employment Certification, or Applications for Permanent Employment Certification. OFLC's web site, including the iCERT Visa Portal System, would become static and unable to process any requests or allow authorized users to access their online accounts.

The Department has posted to its website information on the potential shutdown that can be accessed here.

USCIS should largely operate as normal because it's activities are supported by filing fees and not congressional appropriations. The exception is E-Verify which will shut down. Also, expect some other USCIS functions, like information services and Freedom of Information Act requests to be disrupted. And USCIS processing might be delayed to the extent processing depends on receiving information from other agencies. So, for example, an H-1B application may not be able to be submitted if the Department of Labor paperwork can't be completed. USCIS could allow for filings without the paperwork, but don't count on it.

Immigration Courts. EOIR hasn't posted anything, but immigration lawyers are reporting that the courts are telling folks that processing will continue for detained immigrants. Others will end up seeing their cases rescheduled. The Washington Post reports that EOIR has enough money to operate for about 10 business days and only about 400 of the roughly 1300 EOIR employees will be working.

Consulates and DOS processing. In past shutdowns, visa processing ground to a virtual halt. And in 2011, the State Department told the American Immigration Lawyers Association that in case of a shutdown, visas would only be issued in "life and death" circumstances. But the Washington Post seems to think visa processing would continue as normal because visas are fee supported. Given all visa applicants must be security cleared by other agencies, I'm not sure how the Post comes to that conclusion. So stay tuned.

Border Operations. CBP's Border Patrol and port of entry inspection operations as well as Customs inspecting should continue, but expect delays.

ICE. Immigration enforcement will continue as before. But ICE trial attorneys will only be working on the detained immigrants docket.

Let me know what you're hearing.

[Update 1] DOS has posted the following:

Consular operations domestically and overseas will remain 100% operational as long as there are sufficient fees to support operations. However, if a passport agency is located in a government building affected by a lapse in appropriations, the facility may become unsupported. The continuance of consular operations in such instances will be treated on a case-by-case basis by the Under Secretary for Management.

Also, I just received an email that the CIS Ombudsman's Office has closed.

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Updated 10-01-2013 at 10:50 AM by GSiskind

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