The first U.S. government shutdown in 17 years took effect October 1, 2013, after Congress failed to enact spending legislation for the new fiscal year. The federal government shutdown will impact immigration services across a number of different government agencies. In this Alert we address the impact of a shutdown on E-Verify, immigration service petitions, visas, labor certifications and other government services that corporations and individuals rely upon to facilitate employment.

We will closely monitor the government's immigration operations during the shutdown and provide updates as they become available. Individuals with pending applications or who are planning to travel abroad to secure a visa should contact their attorney for specific guidance, prior to travel.

E-Verify

The U.S. Department of Homeland Security has advised us that E-Verify, the Internet-based system that allows employers to determine the eligibility of prospective employees to work in the United States, is now unavailable due to the shutdown. Although employers must still complete Form I-9 within 3 days of hire, during the shutdown E-Verify's 3 day rule will be suspended and the time for responding to Tentative Non-Confirmations will be extended. Federal contractors are recommended to contact their contracting officers to confirm time frames. Many states require use of E-Verify, so we will continue to monitor communications from E-Verify states to confirm their policies.

Petitions Filed with the Immigration Service

As a fee-based agency, U.S. Citizenship and Immigration Services (USCIS) will continue to process applications and petitions for immigration benefits during the shutdown. This includes petitions for immigrant and nonimmigrant workers as well as applications for adjustment of status. However, processing delays are possible as some staff will be furloughed. Further, delays may occur if adjudication of a petition/application is dependent on support from nonessential government functions that are suspended during the shutdown—for example, if a petition requires a certified Labor Condition Application (LCA) from the Department of Labor (DOL).

In the past, USCIS has relaxed its rules and accepted H-1B filings without certified LCAs when DOL operations have been suspended or delayed. However, USCIS has not yet announced whether it will do so during the current shutdown.

PERM and Labor Condition Applications

The DOL has stated that all immigration-related functions will be suspended during the shutdown. This means that the DOL will cease processing PERM labor certifications and LCAs. Further, the DOL will not accept new PERM application filings or new LCAs. Processing of PERMs and LCAs will resume only after the government shutdown is over.

Air Travel

The majority of the Department of Homeland Security's employees are expected to stay on the job, including uniformed agents and officers at the country's borders and ports of entry. U.S. Customs and Border Protection (CBP) is deemed an essential function and will likely continue operations near normal capacity. Therefore, we expect that CBP will continue to adjudicate applications/petitions for TN and L-1 status that are currently processed at the border.

State Department, Visa Applications

The Department of State confirmed that consular operations will remain operational and that U.S. Consulates abroad will continue to process visa applications as long as funds are available. This funding is expected to last only for a few days, at which point the State Department will likely cease processing visas and focus solely on diplomatic services and emergency services for American citizens.

U.S. Passports

The Bureau of Consular Affairs is funded by fees rather than appropriated funds, and therefore it appears the Passport Office will continue to operate. However, some State Department passport offices are located in federal buildings that may have to shut down.

Social Security Administration

The Social Security Administration will remain open during the shutdown. However, it will not be accepting or processing Social Security Number (SSN) applications. Although an employee may begin work without a social security number, the lack of an SSN could affect the individual's ability to secure a U.S. driver's license, open a bank account, secure credit and obtain other benefits.

Department of Motor Vehicles

Even though driver's license and state identification cards are issued by state governments, a foreign national's application for a new or renewed license could be delayed during the shutdown. The state Department of Motor Vehicles issuing the license must use a federal database to verify the individual's immigration status before it will issue a driver’s license or identification card. This database, known as SAVE, could be suspended during the shutdown.