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Legal Update

US Government Shutdown Contingency Planning for Immigration Filings

19 January 2018
Mayer Brown Legal Update

If the US Congress fails to pass a bill financing the federal government before midnight, January 20, 2018, it will result in a partial government shutdown. Although large parts of the federal government would close, many government functions would continue. The following information is drawn from recent communications from federal agencies or based on experience from the October 1, 2013, federal government shutdown. If a shutdown occurs now, the agencies will issue new guidance and may take different postures than those from 2013.

US Citizenship and Immigration Services

US Citizenship and Immigration Services (USCIS) is primarily funded by user fees rather than appropriated funds. It is expected, therefore, that most of its offices will continue to operate during the shutdown, albeit with a reduced staff. The E-Verify program will likely be unavailable in the event of a shutdown.

Department of Labor

The Department Labor (DOL) does not rely on user fees and is dependent on government funding. All but six of the 1,734 Wage and Hour Division employees are expected to be furloughed in the event of a shutdown.

The latest information from the DOL (published July 31, 2017) is that in the event of a government shutdown, the agency will neither accept nor process any applications or related materials (such as audit responses), including Labor Condition Applications, Applications for Prevailing Wage Determination, Applications for Temporary Employment Certification, or Applications for Permanent Employment Certification. The Office of Foreign Labor Certification’s (OFLC) website, including the iCERT Visa Portal System, would become static and unable to process any requests or allow authorized users to access their online accounts.

Customs and Border Protection

Inspection and law enforcement are considered "essential personnel," although staffing may be limited. Customs and Border Protection (CBP) will need to continue to manage port admissions. In this regard, CBP provided the following advice concerning the October 2013 shutdown:

  1. All ports of entry are open. There is no change in using overtime to handle flight arrivals, and CBP continues to accept requests from airlines for new service. The Border Patrol and the Office of Air and Marine are also continuing operations.
  2. The Admissibility Review Office (ARO) is open and continues to function.
  3. All global entry enrollment centers are open, interviews are continuing, and all Trusted Traveler programs continue to function as usual.
  4. The CBP website is not maintained during the lapse in appropriations.
  5. Approximately 6,000 CBP positions, primarily held by technicians and support staff, are impacted by the lapse in appropriations.

Department of State

The Department of State (DOS), which receives funding in accordance with the annual State, Foreign Operations and Related Appropriations Act, may be able to operate for a limited time. DOS provided the following information in connection with the October 2013 shutdown:

“The Department will continue as many normal operations as possible; operating status and available funding will need to be monitored continuously and closely, and planning for a lapse in appropriations must be continued. DOS will continue passport and visa operations as well as provide critical services to U.S. citizens overseas as these activities are fee-funded and not affected by the lapse in appropriations.”

Authors

  • Elizabeth (Liz) Espín Stern
    T +1 202 263 3825
  • Paul Virtue
    T +1 202 263 3875
  • Grace Shie
    Partner
    T +1 202 263 3845
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