On December 22nd, the federal government shut down all non-essential, discretionary functions carried out by federal administrative agencies. As the shutdown crosses the one month threshold, there has been significant media coverage of how the shutdown has impacted the immigration courts, as well potential impacts on so-called “dreamers” with DACA status. The impact of this shutdown on employment-based immigrants, including businesspeople, artists, athletes, researchers, and others, has received little publicity. I am posting this analysis to provide additional information on the impacts of the shutdown on employment-based immigrants.
U.S. Department of State: The U.S. Department of State has ordered all direct-hire employees and locally-hired staff furloughed as a result of the government shutdown to return to work effective today, January 22.
The Department of State had previously announced that scheduled appointments to apply for U.S. passports and visas would be held as scheduled. In a January 17 announcement, the Department of State indicated that most personnel operations would resume as of January 22, with some limits on additional expenditures due to budget constraints. See https://www.state.gov/m/2019/288491.htm for details.
This change will likely alleviate delays in immigrant and nonimmigrant visa processing and processing of J-1 waiver requests, although funding constraints may mean that some delays continue until the government is fully funded.
U.S. Citizenship and Immigration Services: Let’s start with some good news. U.S. Citizenship and Immigration Services, or USCIS, is the Federal administrative agency that issues decisions on immigration applications and petitions, including applications for many employment-based visas and green cards, as well as U.S. citizenship applications. Business will resume as usual for most applicants filing with USCIS, as the agency is mainly funded by filing fees rather than annual appropriations.
However, there are a handful of exceptions to this general rule. USCIS also administers the following initiatives, which are funded by federal appropriations. Since these appropriations were not renewed in December 2018, these programs have been impacted. These programs include the following:
E-Verify. E-Verify is an online service that allows U.S. employers to verify that their employees are authorized to work in the United States. E-Verify is unavailable during the government shutdown. During this time, employers should continue to complete Forms I-9 for all employees.
EB-5 Investors. The EB-5 investor program allows individuals to invest substantial sums of money in the U.S. economy in exchange for the chance to pursue green card applications. USCIS has indicated that it will continue to process pending applications for EB-5 investors, although it will not accept new green card applications on Form I-485 for EB-5 investors until shutdown ends. Additionally, the Department of State has indicated that it will not schedule additional green card interviews for EB-5 investors until the shutdown has ended.
Conrad 30 Physicians. The Conrad 30 physician program allows foreign physicians to enter the United States in J-1 status to provide medical care in an underserved area. In general, a physician entering the United States in J-1 status would be required to return to their home country for two years before they would be allowed to apply for another work-authorized status or a green card in the U.S. The Conrad 30 program provides a compromise that allows for better patient care while also providing these physicians with the opportunity to remain in the United States long-term. In return for providing 3 years of service in an underserved area, physicians in the Conrad 30 program are allowed to work in J-1 status without the need to return to their home countries for two years before applying for a green card or another employment-based status. While this program has proven effective, its appropriations lapsed in December 2018, and new applications will not be accepted until the program is funded. While Physicians currently working under the Conrad 30 program will retain their status, physicians hoping to apply for Conrad 30 J-1 status will have to wait until funding is available to continue the program.
Non-Minister Religious Workers. Annual appropriations to fund the government generally include funds to extend the Non-Minister Permanent Residence Program. This program allows people in religious occupations the opportunity to apply for permanent residence. USCIS has indicated that any pending non-minister immigrant petition (Form I-360) filed on or before Dec. 21, 2018, will be placed on hold until the program is renewed. In addition, any non-minister I-360 petition received by USCIS on or after Dec. 22, 2018, will be rejected. However, this lapse in funding does not impact temporary R-1 visa applications for religious workers or permanent residence applications for ministers.
USCIS Ombudsman. The USCIS Ombudsman’s office, which accepts requests to inquire into long-pending matters, is closed during the government shutdown.
U.S. Customs and Border Protection: U.S. Customs and Border Protection (“CBP”) continues to review applications for admission to the United States at ports of entry on the land borders to the United States and at international airport.
However, as of December 21, 2018, CBP’s website is not being actively managed, so information listed there should be considered accurate only as of December 21. CBP has also confirmed that its Administrative Review Office is currently furloughed, meaning that ports of entry are not currently accepting Applications for Advance Permission to Enter as a Nonimmigrant (Form I-192), which allow individuals who are inadmissible to the United States to request permission to temporarily enter the country. The NEXUS program, which allows pre-screened travelers expedited entry to the United States and Canada, has also been furloughed.
U.S. Department of Labor. The Department of Labor is not impacted by the government shutdown, as it is fully funded through September 30, 2019. This means that labor certification applications, labor condition applications, and other applications adjudicated by the U.S. Department of Labor should continue to be processed normally.
Without discussing the specifics of an individual’s case, it is impossible to give legal advice. For this reason, I recommend that anyone schedule a consultation with an immigration attorney who is experienced in helping people in their situation before applying for a visa or travelling to the United States. The information provided here is only intended as general information and is not a substitute for legal advice.
Sincerely,
Vance Berry, Managing Attorney