Congress was unable to agree on a spending bill and the US government has shut down as of midnight, January 19th. This leaves many wondering how immigration benefits are impacted. 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:

From an immigration perspective, the greatest impacts of the government shut down are to the e-Verify program and any Department of Labor (DOL) related immigration matters. 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.

With the shutdown also comes cessation of the DOL’s Office of Foreign Labor Certification (OFLC) application processing, with personnel unavailable to respond to e-mail or other inquiries. All of the OFLC’s web-based systems including iCert and PERM are inaccessible. This means that Labor Condition Applications required for H-1B temporary worker petitions cannot be submitted or adjudicated. Prevailing wage determinations used in H visa programs and in connection with applications for permanent employment certification also cannot be submitted or adjudicated. Temporary and permanent labor certification applications are also halted. Not only will this result in delays from a growing backlog of cases, but it can lead to dire issues for those foreign national workers relying upon extensions of stay and timely filed green card applications to continue working and residing legally in the US. Employers and foreign national employees should be monitoring visa expirations and filing deadlines and have an alternate game plan ready.

Other immigration programs will either expire or suspend operations, or be otherwise affected, until they receive appropriated funds or are reauthorized by Congress. These include the EB-5 Immigrant Investor Regional Center Program, Conrad 30 J-1 doctors, and non-minister religious workers.

The last government shutdown, which occurred in 2013, ended after seventeen (17) days and caused major disruption to DOL processing. Let’s hope this time around, the shutdown is shorter lived.