What a government shutdown under Trump would mean for immigration

4 Dec 17

UNITED STATES

Lawmakers are down to their final days to reach a budget deal or face a government shutdown. Immigration is one of the key sticking points in negotiations, with Democrats indicating that they want a provision in the budget to help Dreamers, the undocumented youth who benefited from the Deferred Action for Childhood Arrivals program that President Trump rescinded in September.

While a last-minute deal is certainly possible, employers may wish to begin preparing in case government services are suspended. If no deal is reached on the budget or on a temporary spending measure to fund the government while negotiations continue, a number of government functions would be suspended starting Friday.

Below are some frequently asked questions about how immigration programs would be affected in the event of a shutdown.

Will employees and business travelers be able to obtain visas?
The State Department would likely continue processing visas, at least while funds are available. Domestic and overseas consular offices would remain functioning, so long as fees collected from applications are sufficient to support operations. American citizens applying for or renewing passports, however, would be immediately impacted by closures of federal buildings during a shutdown. Depending on the length of any government shutdown, visa and passport processing could be significantly delayed. Applicants are encouraged to file as soon as possible in case of a lengthy shutdown and factor in the possibility of delays.

How would our company’s H-1B filings and other U.S. Citizenship and Immigration Services petitions be affected?
USCIS would continue to process petitions, but employers should anticipate delays. Any petition requiring action by the Labor Department, however, would be immediately affected, as the department’s immigration-related functions would be considered nonessential and cease during a shutdown. Employers would not be able to file Labor Condition Applications, a prerequisite to H-1B, E-3 and H-1B1 filings, including extensions of status and changes of employers for those categories. USCIS would continue to accept and process other immigrant and nonimmigrant petitions, including adjustment of status (green card) applications. Cases that have been selected for administrative processing, however, are likely to face lengthy delays.

Our company has already filed PERM applications. Will they be processed during a shutdown?
The Labor Department is responsible for processing permanent labor certification (PERM) applications and, as such, its Office of Foreign Labor Certification would stop accepting or processing all immigration-related applications, including PERM applications, Labor condition applications and applications for prevailing wage determinations, and temporary employment certifications. The suspension would include PERM applications already filed with the Labor Department.

Will Canadian employees applying for TN and L visas at the U.S. border be affected?
U.S. Customs and Border Protection officers would continue to process applications at ports of entry, including TN and L applications by Canadian nationals. However, there have been inconsistencies in how these applications are adjudicated at ports of entry, and applicants should be prepared for delays and additional scrutiny.

Will employees be able to apply for Social Security cards, driver’s licenses and other ID cards?
The Social Security Administration will not accept applications for Social Security numbers or replacement cards during a government shutdown. This could affect eligibility to apply for driver’s licenses, as most state motor vehicles departments require a Social Security number to apply for a driver’s license.

Will other immigration programs be affected?
Several immigration programs are set to expire Dec. 8, including the E-Verify program, the Conrad 30 waiver for J-1 physicians, the Special Immigrant Religious Workers program, and the EB-5 regional center investor program. If Congress does not reauthorize them by Dec. 8, the programs will no longer be available.

BAL Analysis: Companies and employees who would be affected by a potential shutdown should submit applications and petitions before Friday if possible, and plan for delays. BAL is closely following the budget negotiations and will continue to provide updates on the possible government shutdown and its impact on immigration-related services.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@balglobal.com.

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