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Government Shutdown Prompts E-Verify Closure, Imperils Other Immigration Services

The federal government shutdown, which began at 12 AM on Tuesday, October 1, 2013, and is ongoing at the time of this writing, is having an immediate impact on the services provided by federal immigration agencies. A summary of the shutdown’s effect on various immigration-related services is below.

The U.S. Department of Homeland Security (DHS)

Due to its primarily fee-funded structure, the DHS anticipates only minimal disruptions to adjudication services. However, inter-agency functions, such as the issuance of Labor Condition Applications (LCAs), which are required for certain types of immigration filings, will be severely impacted.

In addition, E-Verify, which is not funded by fees, will be inaccessible for the duration of the shutdown. This closure affects the program’s employment verification, Tentative Non-Confirmation (TNC), and Self-Check processes. Due to the shutdown, the “three-day rule” for processing employment eligibility queries in E-Verify is indefinitely suspended pending a resolution of the current funding impasse. Furthermore, the deadline of eight federal government workdays for resolving TNCs will be extended and affected employees will receive additional time to visit their local Social Security Administration (SSA) or DHS office when the federal government reopens.

In light of the circumstances, we recommend drafting a short memorandum to the file for cases that will be affected by the suspension in E-Verify services. Employers should note, however, that the suspension of the E-Verify three-day rule does not also suspend the three-day rule for completing Section 2 of the Form I-9. In addition, employers may not take any adverse action against an employee due to an E-Verify interim case status, including an interim case status that is caused by the federal government shutdown.

Most Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) functions will continue during the government shutdown as they are considered essential, with the exception of TN and blanket L adjudications for Canadian citizens. The CIS Ombudsman’s office will also be closed during the shutdown.

To access a copy of the DHS contingency plan, please click here.

The U.S. Department of Labor (DOL)

The Office of Foreign Labor Certification (OFLC) will be closed during the shutdown. The PERM and iCert websites are currently offline and there will no processing of labor certifications, LCAs, or prevailing wage determinations until the federal government reopens. A notice regarding OFLC operations during the shutdown may be accessed here.

The U.S. Department of State (DOS)

The DOS has released the following statement regarding the agency’s operations during the shutdown:

Consular operations domestically and overseas will remain 100% operational as long as there are sufficient fees to support operations. However, if a passport agency is located in a government building affected by a lapse in appropriations, the facility may become unsupported. The continuance of consular operations in such instances will be treated on a case-by-case basis by the Under Secretary for Management.

Visa issuance by the DOS’ Bureau of Consular Affairs is expected to continue for the time being. Agency guidance about the shutdown may be accessed here.

The U.S. Department of Justice (DOJ), Office of Special Counsel (OSC)

The OSC hotline will not be taking calls from the public during the shutdown.

©2019 Greenberg Traurig, LLP. All rights reserved.


About this Author

Nataliya Binshteyn Dominguez, Greenberg Traurig Law Firm, Northern Virginia, Immigration Law Attorney

Nataliya Binshteyn Dominguez focuses her practice on global business immigration matters. She advises corporate and individual clients in a variety of employment-based immigrant and non-immigrant cases. She advises corporations on Form I-9 and E-Verify employment verification matters, including compliance audits, due diligence for corporate restructuring, and immigration-related defense in connection with worksite enforcement investigations. Nataliya also conducts Form I-9 and E-Verify trainings and frequently authors articles regarding immigration compliance issues. She...