With the failure of the US Congress passing a continuing resolution to fund the federal government before the beginning of the fiscal year (October 1, 2013), a shutdown of the federal government has commenced.  What does this mean for processing immigration benefits and consular services?

While “essential” services like the Border Patrol or Customs and Border Protection inspectors at the ports of entry will remain on duty, many other government functions will slow down or cease entirely.  For instance, the Department of Labor, Office of Foreign Labor Certification advised that it will not accept nor process any immigration‑related applications.  That will essentially prevent filings and processing of certain temporary visas such as the H-1B, H-1B1, H-2A/B, and E-3 as well as the immigrant labor certification (PERM) process.

The U.S. Citizenship and Immigration Services (USCIS), which derives most of its operating funds through immigration application fees, is expected to retain  97% of its workforce through a shutdown and will be continuing to accept and process applications.  Embassies and consulates overseas will continue to provide American citizen services, but we expect visa processing services to slow down or cease entirely if the shutdown is prolonged beyond a few days.

USCIS has posted the following notice on its E-Verify website that the system is currently unavailable due to the shutdown.  Therefore, employers will not be able utilize the system to verify employment eligibility for new hires.  Of course, this presents a dilemma for those employers that are subscribed to E-Verify, either voluntarily or pursuant to federal or state law.  The notice states the following:

We understand that E-Verify’s unavailability may have a significant impact on your company’s operations. To minimize the burden on both employers and employees, the following policies have been implemented:

  • The “three-day rule” for E-Verify cases is suspended for cases affected by the shutdown. We’ll provide additional guidance once we reopen. 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. We will provide additional time once we reopen.
  • For federal contractors complying with the federal contractor rule, please contact your 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).

As stated above, the obligations to timely complete Form I-9 and reverify work authorization, when applicable, have not been suspended.   Those employers operating in states requiring use of E-Verify should consult with Squire Sanders’ employment counsel to assure they are taking the necessary steps to comply with state law.

Stay tuned as we will continue to follow this developing saga and monitor announcements issued by the various government agencies.