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Legal Alert: Government Shutdown and Processing of Immigration Benefits

Date   Oct 1, 2013
On October 1, 2013, the U.S. Federal Government implemented a shutdown after Congress failed to reach an agreement on appropriations. 

Executive Summary:  On October 1, 2013, the U.S. Federal Government implemented a shutdown after Congress failed to reach an agreement on appropriations.  As a result, several federal agencies involved in processing immigration benefits have been impacted for the unforeseen future. 

U.S. Department of Labor

The U.S. Department of Labor's Office of Foreign Labor Certification ("OFLC") will neither accept nor process any applications or related materials (such as audit responses) it receives, including Labor Condition Applications (required for H-1B and E-3 petitions), Applications for Prevailing Wage Determination, Applications for Temporary Employment Certification, or Applications for Permanent Employment Certification (also known as "PERM" or "Labor Certification" applications.)  OFLC's web site, including the iCERT Visa Portal System, will become static and unable to process any requests or allow authorized users to access their online accounts.  The processing of any pending matters will be delayed until the DOL resumes operations.  For more information, see http://www.foreignlaborcert.doleta.gov/.

U.S. Department of State

The U.S. Consulates and Embassies around the world are run by the U.S. Department of State.  U.S. Consulates issue U.S. visas for foreign nationals and assist American citizens with a variety of passport and other matters.  According to the State Department, visa and consular services will continue as usual despite the lapse in appropriations starting October 1.  Until further notice, appointments for visa and American Citizen Services will take place as scheduled.  For more information see http://www.state.gov/m/rls/2013/214880.htm.

U.S. Citizenship and Immigration Services ("USCIS")

All USCIS offices worldwide are open, and individuals should report to interviews and appointments as scheduled.  In addition, USCIS will continue to process fee-based immigration benefit petitions and applications.  This includes numerous temporary work visa petitions, work and travel documents.  See http://www.uscis.gov/portal/site/uscis.

E-Verify Program

The E-Verify program currently is unavailable due to the government shutdown. See https://e-verify.uscis.gov/emp/vislogin.aspx?JS=YES.  While E-Verify is unavailable, employers will not be able to access their E-Verify accounts.  As a result, companies will be unable to:

  • Enroll in E-Verify;
  • Verify employment eligibility;
  • View or take action on any case;
  • Add, delete or edit any User ID;
  • Reset passwords;
  • Edit company information;
  • Terminate an account;
  • Run reports; or
  • View "Essential Resources."  (All essential resources may be found by visiting www.dhs.gov/e-verify.)

In addition, E-Verify Customer Support and related services are closed.  As a result:

  • Employees will be unable to resolve Tentative Nonconfirmations (TNCs).
  • Telephone and e-mail support will be unavailable.  Employers may send e-mails; however, USCIS cannot respond until it reopens.
  • E-Verify webinars and training sessions are cancelled.
  • E-Verify Self Check will not be available.

To minimize the burden on both employers and employees, USCIS has implemented the following policies:

  • The "three-day rule" for E-Verify cases is suspended for cases affected by the shutdown.  USCIS will provide additional guidance when it reopens.  This does NOT affect the Form I-9 requirement.  Employers must still complete the Form I-9 no later than the third business day after an employee starts work for pay.
  • The time period during which employees may resolve TNCs will be extended. Days the federal government is closed will not count towards the eight federal government workdays the employee has to go to SSA or contact DHS. USCIS will provide additional time once it reopens.
  • Federal contractors complying with the federal contractor rule should contact their contracting officer to inquire about extending deadlines.
  • Employers may not take any adverse action against an employee because of an E-Verify interim case status, including while the employee's case is in an extended interim case status due to a federal government shutdown. (Consult the E-Verify User Manual for more information on interim case statuses.)

The information discussed above is taken from the various federal agencies' announcements regarding the impact of the lapse in appropriations.  More information is available on the agency web sites.  If you have any questions regarding this Alert, or other business immigration issues, please contact Geetha Adinata, gadinata@fordharrison.com, who is a partner in our Atlanta office and member of FordHarrison's Business Immigration practice group, or the FordHarrison attorney with whom you usually work.