Wednesday, October 2, 2013


The government shutdown has created some confusion in the immigration community. Certain governmental services that are an essential part of my work as an immigration attorney have either shut down or began operating on a limited basis. Until Congress gets it together and passes a new budget, this will become the operating status quo for my industry. Below is a quick list of governmental resources and a brief description of how the shutdown affects them. 

EOIR: Only Immigration Court functions that support the detained caseload will continue, but other functions are suspended. The Board of Immigration Appeals (BIA) is processing emergency stay requests as well as detained cases only, including case appeals, motions, federal court remands, and bonds. For all our non-detained clients, cases will not be heard and moved to future hearing dates.

ICE:  ICE detention and enforcement operations will continue as it is considered an essential function. However ICE chief counsel trial attorneys will work only on detained docket during the shutdown. The ICE Community and Detainee Helpline will remain operational.

USCIS: All USCIS offices worldwide are open and individuals should report to interviews and appointments as scheduled. Since USCIS is supported by filing fees and not congressional appropriations it is not affected at all by the shutdown. However, its E-Verify program is not working during the shutdown. 

Customs and Border Protection operations are considered to be essential functions and would not be disrupted. However, if there are staffing cuts, it is possible that there would be some delays in processing applications presented at the U.S. border and at border crossings. There may also be delays in waiver adjudication.

Department of State functions will be delayed although most services will remain open. Travel plans for State Department personnel will mostly be put on hold, as will all new employment offers. The State Department has not released exact numbers of furloughs, but in previous shutdowns, furloughs were felt more heavily at the department's headquarters in Washington than at posts overseas.

Consular operations will continue which means that people would be able to get visas (and passports) in the U.S. and abroad at consular sites but these services could be heavily delayed. The shutdown of ancillary consular operations, including building support and the employment of local personnel, may impact the delivery of visa services, resulting in cancellation of visa appointments or delays in the processing of visa applications. In past shutdowns, visa processing was slowed down significantly and they only processed "life and death" situations. However now many of the visas are fee-supported so they promise not to delay visa processing. So short answer is nobody knows how they will be affected so foreign nationals should be prepared for delays in consular visa processing and, where feasible, may want to consider postponing travel outside the United States if a new visa would be required to reenter the United States if not absolutely necessary.

Passports: Passport processing will be delayed as many offices are inside buildings that will be shut down.

CIS Ombudsman: The CIS Ombudsman's Office will be closed and will not be accepting any inquiries through their online case intake system.

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, the 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. As of now, OFLC's web site, including the iCERT Visa Portal System and the PERM system, are inoperative and unable to process any cases. PERM applications that need to be filed due to expiring recruitment or the need to preserve H-1B AC21 eligibility could presumably be filed by mail if necessary. There is a problem for H-1B extensions that cannot be filed without the LCA - USCIS has been contacted about this issue by AILA to allow filing without the LCA for now. 

DHS: Due to the lapse in federal funding, DHS’ website will not be actively managed.

DHS OIG: The majority of DHS OIG staff has been furloughed due to the lapse in appropriations.

Comprehensive Immigration Reform: The shut down will create even more of a delay for the immigration reform cause as Congress will completely shift gears to address their inept bargaining tactics instead of addressing this key piece of legislation. However, the nationwide immigration event, known as the March for Immigrant Dignity and Respect will still continue as planned on October 5. To learn more, please click here.