December 5, 2021

Volume XI, Number 339

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December 03, 2021

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December 02, 2021

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Government Shutdown Immigration Impacts

How are immigration benefits impacted if Congress is unable to agree on a spending bill and the U.S. government shuts down? 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:

Agency

Service

Services Suspended?

US Citizenship & Immigration Services

Administers fee-based immigration benefits

No

US Customs & Border Protection

Controls admissions at US ports-of-entry

No

US Immigration & Customs Enforcement

Enforces immigration laws inside the US

No

US Department of State

Issues nonimmigrant and immigrant visas

No

US Department of Labor

Administers the H-1B Labor Condition Application and Application for Permanent Employment Certification program as well as the Board of Alien Labor Certification Appeals

Yes

Executive Office for Immigration Review

Adjudicates immigration cases

No, not for detained docket

e-Verify

DHS & SSA based system for employment verification

Yes

Student Exchange Visitor Program

Administers the Student and Exchange Visitor program

No

CIS Ombudsman

Helps resolve USCIS related issues and inquiries

Yes

 

From an immigration perspective, the greatest impacts of the government shut down are to the e-Verify program and any filings which contain a Department of Labor component (i.e., H-1B Labor Condition Applications, Prevailing Wage Determinations, and ETA-9089 Applications for Permanent Employment Certification).

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.  

Copyright © 2021 Womble Bond Dickinson (US) LLP All Rights Reserved.National Law Review, Volume XI, Number 274
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About this Author

Jennifer Cory, Womble Carlyle Law Firm, Charlotte North Carolina, Immigration LawAttorney

Jennifer Cory leads Womble Carlyle Immigration Solutions, which provides management of inbound immigration services for domestic and international employers and investors. Jennifer has practiced immigration law since 1995 and is certified as a Specialist in Immigration Law by the North Carolina State Bar.

Jennifer’s work focuses on employment-based immigrant and nonimmigrant petitions, including, but not limited to, preparation of treaty investor/trader visa applications, H-1B temporary worker petitions and L-...

704-350-6337
Susan Ramos  North Carolina WBD Immigration Attorney Consular processing Humanitarian Relief  Workplace Compliance Spanish Speaking
Senior Counsel

Susan is an immigration lawyer with over fifteen years of experience assisting individuals, families, and employers in connection with assessing available U.S. immigration options.

Her practice includes preparing and filing individual, family-based, and employment-based petitions, immigrant and nonimmigrant visa applications, and waivers of inadmissibility. She assists with complex consular processing issues, complicated citizenship and naturalization issues, petitions for humanitarian relief, and removal defense. She advises employers regarding worksite compliance, conducting...

1 704.350.6312
Jeffrey B. Widdison Attorney Immigration Womble Bond Dickinson Charlotte
Counsel

Jeff Widdison is an immigration attorney that represents clients in employment-based permanent residency cases, consular processing, nonimmigrant visa applications, naturalizations, family-based filings, administrative appeals to the AAO and BIA, employer sanctions, petitions for review with U.S. Circuit Courts, mandamus and APA causes of action filings with U.S. District Courts, and has a wealth of experience in representing clients with removal defense. He has been recognized as a Board Certified Immigration Specialist in Immigration Law by the North Carolina State Bar...

704-444-2950
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