What happens to immigration cases during a government shutdown?

With the news that House conservatives have objected to a bipartisan spending bill that would have extended government funding until March, we find ourselves again on the precipice of a government shutdown.

When the government shuts down, all government employees except those deemed “essential” are furloughed and not allowed to work. This can profoundly impact some people’s immigration cases, while others are not impacted. Below, I explain the likely impacts on services offered by each of the agencies that handle immigration services.

U.S. Citizenship and Immigration Services (“USCIS”)

USCIS is largely funded by the filing fees paid by applicants and petitioners. While clients are often surprised at USCIS’ filing fees, which exceed $3,000 for a green card case with applications for work and travel authorization, a silver lining appears during government shutdowns. While other agencies grind to a halt, operations continue at USCIS for most cases. This means that, for the vast majority of cases, USCIS will continue receiving and processing cases as normal.

There are a few exceptions, as certain USCIS programs do receive funds appropriated by Congress. These are: E-Verify, the EB-5 Immigrant Investor Regional Center Program, Conrad 30 J-1 doctors, and non-minister religious workers. The impacts on these programs are as follows:

• In 2023, USCIS confirmed that employers may use the alternate remote I-9 document verification process when E-Verify is inactive due to a government shutdown.

• Although it is funded by appropriations, the EB-5 Immigrant Investor Regional Center Program should not be impacted by this shutdown, as it has been authorized until September 30, 2027

• The Special Immigrant Religious Worker Program will expire December 20, 2024, unless a continuing resolution or appropriations package is signed into law extending the program.

• Following past government shutdowns, USCIS has accepted late Form I-129 filings for H-1B, H-2A, or H-2B visa applications when submitted with evidence that the primary reason for failing to timely file an extension of stay or change of status request was the government shutdown. While there is no guarantee that USCIS would adopt this policy again following this shutdown, it is possible that USCIS would again adopt this policy.

U.S. Department of State (“DOS”)

Visa applications through U.S. embassies and consulates abroad and passport operations are funded by filing fees. Like most USCIS services, these services are not directly impacted by a government shutdown. However, these applications can be impacted when the total filing fees are not sufficient to support a particular U.S. embassy or consulate. When this occurs, that post will normally scale down operations to handle only visas for diplomats and life or death emergencies.

U.S. Customs and Border Protection (“CBP”)

The U.S. government considers customs officials who handle inspection and law enforcement to be essential, therefore these individuals continue working during government shutdowns. This allows travelers to continue to enter the U.S. through ports of entry at land borders and airports. However, certain visa applications that are processed at the border, including border-filed TN and L-1 applications for Canadian citizens, may be impacted.

U.S. Immigration and Customs Enforcement (“ICE”)

The operations of ICE are generally considered essential, meaning that the immigration enforcement and removal functions of ICE are generally unaffected by a government shutdown. Additionally, ICE attorneys continue to represent the government in immigration court in cases involving people in immigration detention.

Executive Office of Immigration Review (“EOIR”)

EOIR handles the operations of the immigration court system. Generally, cases involving people in immigration detention will continue as schedules, while court dates involving people who are not detained will be rescheduled for a date following the end of the government shutdown.

U.S. Department of Labor (“DOL”)

The Office of Foreign Labor Certification (“OFLC”), which allows businesses to apply to DOL for certification to hire foreign workers through PERM and LCA applications, would stop receiving and processing applications during a government shutdown. This would be effective 11:59 pm on December 20. Any pending cases with the Board of Alien Labor Certification Appeals would be placed on hold. In the event of a shutdown, it is possible that OFLC would issue guidance about flexibility for employers with pressing filing deadlines.

USCIS Ombudsman

The USCIS Ombudsman, who assists with problematic and long-pending adjudications would close and not accept any inquiries during a government shutdown.

Congressional Offices

Some congressional offices may close during a government shutdown, although this may vary office to office.

Navigating moments like these can be difficult without an experienced immigration attorney by your side. Since graduating from Vanderbilt Law School in 2013, I have practiced exclusively immigration law and have helped hundreds of people make their home in the United States. I provide immigration law services in Portland, Oregon and to clients throughout the United States and abroad.

This post is intended as only general information and is not a substitute for legal advice. Without discussing the specifics of a person’s case, it is not possible to give legal advice. Please feel free to reach out using the “Let’s Talk” link at tailwindil.com, and I will respond to you as soon as possible.

Vance Berry, Principal Attorney

Photo credit: Caleb Oquendo

New Update: Green Card Program for Spouses of U.S. Citizens

The Biden administration recently launched a program that would provide a pathway to citizenship for certain undocumented spouses and stepchildren of U.S. citizens. First available on August 19, 2024, this process was designed to allow eligible family members to receive a green card without needing to leave the U.S. and risk enduring a period of separation from their families.

Known as Keeping Families Together, this program gave U.S. citizens and their family members the hope of being able to achieve legal status and a long-desired sense of security. The Department of Homeland Security estimated that approximately 500,000 noncitizen spouses of U.S. citizens would be eligible to apply under this program.

This blog post will focus on the current status of the Keeping Families Together program and possibilities for what could come next. For more information on who is eligible to apply for the Keeping Families Together program, please see USCIS’ guidelines here.

Keeping families together program under court review

A week after this new program launched, the U.S. District Court for the Eastern District of Texas issued an order requiring USCIS not to approve any applications until the Court decided several issues in the case.

Yesterday, September 11, 2024, the Fifth Circuit Court of Appeals in New Orleans, Louisiana issued an unpublished order requiring that paused the proceedings in the U.S. District Court for the Eastern District of Texas while the Fifth Circuit resolved another matter regarding this case. In this latest court order, the 5th Circuit has scheduled oral argument for October 10, and USCIS approval of these applications will remain on hold indefinitely pending further action by the Court.

is uscis still accepting keeping families together applications?

USCIS is still accepting applications for the Keeping Families together program, although the government remains unable to approve any filed applications. Applications must be filed online and require a government filing fee of $580. Please note that USCIS has not guaranteed that it will refund filing fees if the Keeping Families Together program is permanently stopped.

WHAT COULD HAPPEN to THE keeping families together program?

There are a several possibilities as to what could happen next. Following oral arguments on October 10, the Fifth Circuit could make a decision on the merits of the case, either reactivating the Keeping Families Together program or stopping the program.

In either event, the case is likely to be appealed to the Supreme Court of the United States. The Supreme Court would then decide whether to hear the case or to allow the Fifth Circuit’s ruling to remain in place. The Supreme Court typically issues decisions in late June or early July.

Another possibility is that the Fifth Circuit may send the case back to the U.S. District Court for the Eastern District of Texas following their initial review. This would then likely be appealed to the Fifth Circuit Court of Appeal and ultimately to the U.S. Supreme Court, making for a lengthy process.

The final possibility is a political solution. As a general rule, Courts must give greater respect to laws issued by Congress vs executive actions such as the Keeping Families Together program. If Congress passes a law that provides these protections, this could allow family members of U.S. citizens to apply for green card status without leaving the United States.

Of course, there is a presidential election in November 2024. At the same time, voters will decide 33 open Senate seats and all 435 seats in the House of Representatives. At this stage, the potential results of these Congressional elections remain uncertain. Based on the outcome of these elections, it is possible that Congress could pass a law protecting family members of U.S. citizens once the new members of Congress are installed in early 2025.

Without discussing the specifics of a person’s case, it is not possible to give legal advice. If you are looking for help, I recommend scheduling a consultation with an experienced immigration attorney. I provide immigration law services in Portland, Oregon and to clients throughout the United States and abroad. This post is intended as only general information and is not a substitute for legal advice.

Vance Berry, Principal Attorney

Photo credit: William Cho

Can you apply for a green card as soon as you are married?

Once wedding day is over and the flower petals are swept away, many newlyweds are left with the same question: “After we get married, how long do we have to wait to file a green card application?”

how long to wait to file a green card application after marriage

Can you apply for a green card as soon as you are married? Fortunately, U.S. immigration law provides a clear answer: no waiting period is required before filing the first step in the green card process, the I-130 immigrant petition, for spouses of U.S. citizens or permanent residents. For spouses of U.S. citizens who are in the U.S. in valid status following a lawful entry, the second step in the process, the I-485 Adjustment of Status Application and related forms, can generally be filed at the same time.

what evidence is required for a marriage based green card application?

While no delay is required by law, it is important to make sure you are aware of what evidence is required for a marriage based green card application. Any marriage-based I-130 Immigrant Petition must be accompanied by a copy of the marriage certificate. Depending on the place of marriage, it can take as little as one day or as long as a month to receive the marriage certificate following wedding day. For more details on the required evidence for the I-130 immigrant petition, see the USCIS instructions here.

is it a good idea to wait to file a green card application after marriage?

The main hurdle in most marriage-based green card application is demonstrating that the marriage was entered in “good faith.” This means that the couple will need to show that their main reason for getting married was not to receive a green card.

Proof of good faith marriage can include documents showing that the couple shares a common residence, co-owns property, and/or has combined their assets, among other evidence. The marriage based green card applications I file normally include hundreds of pages of evidence of good faith marriage. I have found that providing plenty of evidence improves the couple’s chances of a smooth process.

While it is possible to file immediately after getting married, couples often wonder if it is a good idea to wait to file a green card application after marriage. Some people choose to live separately or wait to establish joint accounts until after marriage. In these cases, it can take a few weeks to gather additional evidence of good faith marriage after wedding day, including joint bank account statements and evidence of a common home. While this will delay the filing of the green card application slightly, waiting to provide evidence of a common address and joint accounts can avoid setbacks during the process, improving the odds the case will be approved.

The immigration officer reviewing the application will also expect to see photos from the couple’s wedding day. For those using a wedding photographer, it can take as long as several weeks to receive final photos. These images help tell the story of the couple’s wedding and can be valuable evidence. Therefore, it is generally worthwhile to wait to file the green card application until wedding photos are available.

Please note that, under the so-called “90 day rule”, it is wise for people who enter the U.S. in ESTA or B-1/B2 visitor status to avoid marriage or a green card application within 90 days following entry to the U.S. Taking these actions within 90 days of entry will lead the immigration service to presume that the applicant misrepresented their intentions when they came to the U.S., which can result in the denial of the green card application. Even if 90 days have passed before marriage or a green card application, the applicant can be questioned about their intentions when coming to the U.S. as a visitor. An experienced immigration attorney can help advise you on the implications of the 90 day rule.

conclusion: Can you apply for a green card as soon as you are married?

The law allows for the I-130 immigrant petition to be filed as soon as a couple is married. In addition, applicants not subject to backlogs, such as spouses of U.S. citizens present in the U.S. after a lawful entry, are also able to file the I-485 Application for Adjustment of Status as soon as they are married.

While it is tempting to file as soon as possible, it is important to be aware of what evidence is required or recommended for a marriage based green card application. The availability of this evidence will determine how long to wait to file a green card application after marriage.

Without discussing the specifics of a person’s case, it is not possible to give legal advice. In marriage-based cases, there are other issues, including current immigration status, domicile of the U.S. petitioner, and ability to financially support the intending immigrant that are important to examine before filing any application.

If you are looking for help, I recommend scheduling a consultation with an experienced immigration attorney. This post is intended as only general information and is not a substitute for legal advice.

Vance Berry, Principal Attorney

Photo credit: Olcay Ertem

Good News: USCIS Backlogs Easing

USCIS has released new data showing that processing times are improving for several common case types. A year ago, I joined other immigration attorneys in contacting members of Congress to advocate for changes to reduce U.S. Citizenship and Immigration Services (“USCIS”) backlogs. A year later, USCIS is showing signs of progress.

USCIS is tasked with processing a vast array of immigration applications and petitions, including applications for temporary visa status, green cards based on family and employment, U.S. citizenship, and more. USCIS has long taken many months, or even years, to process filings, all while charging filing fees that can total thousands of dollars.

During the Covid-19 pandemic, processing times peaked at extreme levels as staffing and funding issues severely impacted USCIS’ operations. These backlogs have been slow to resolve, leaving applicants in difficult situations as they waited for the ability to work, travel, or become green card holders or U.S. citizens.

In 2024, USCIS’ average processing times are showing signs of progress on many case types, including the following:

• Family-Based Adjustment of Status Application (U.S.-based green card application):

  • Peaked at 12.9 months in 2021, dropped to 9.4 months in 2024 (27% faster)

• Naturalization (U.S. Citizenship):

  • Peaked at 11.5 months in 2021, dropped to 5.2 months in 2024 (55% faster)

• Employment Authorization Based on Pending Adjustment of Status Application:

  • Peaked at 7.1 months in 2021, dropped to 3.6 months in 2024 (49% faster)

While these gains are promising, they are not universal. USCIS processing for travel documents that allow people to travel outside the United States while their U.S.-based green card applications are pending are still taking an average of 15 months to process, where these same applications routinely took only 2-4 months to process before the pandemic.

Similarly, Form I-130 immigrant petitions for immediate relatives, the first step in the family-based green card process, are currently taking an average of 11 months to process, whereas processing times of 5-8 months were typical before the pandemic.

While USCIS’ processing improvements are good news, more work remains to be done. I will continue to advocate for faster processing times to ensure that we have a functional system where everyone who applies for an immigration benefit has their case processed within a reasonable amount of time.

For USCIS’ full press release on current processing times, see https://www.uscis.gov/sites/default/files/document/fact-sheets/historical_pt_factsheet_fy16_to_fy24.pdf

Without discussing the specifics of a person’s case, it is not possible to give legal advice. If you are seeking help, I recommend scheduling a consultation with an experienced immigration attorney. This post is intended as only general information and is not a substitute for legal advice.

Vance Berry, Principal Attorney

Photo credit: White Field Photo