As of December 27, 2018, the federal government is in shutdown mode due to a stalemate regarding President Trump’s insistence that appropriations include funding for the building of a wall at the southern border of the United States. The Executive Office for Immigration Review (EOIR), U.S. Citizenship and Immigration Services (USCIS), and the Department of State (DOS) outlined the effects of the government shutdown on their operations.
EOIR: Immigration Courts
EOIR announced that during the current lapse in appropriations, detained docket cases will proceed as scheduled. Non-detained docket cases will be reset for a later date after funding resumes. Immigration courts will issue an updated notice of hearing to respondents or, if applicable, respondents’ representatives of record for each reset hearing.
USCIS: Fee-Funded Activities
The current lapse in annual appropriated funding for the federal government does not affect USCIS’ fee-funded activities. USCIS offices will remain open, and all individuals should attend interviews and appointments as scheduled. Generally, USCIS will continue to accept petitions and applications for benefit requests.
Some USCIS programs, however, will either expire or suspend operations, or be otherwise affected, until they receive appropriated funds or are reauthorized by Congress. These include:
• EB-5 Immigrant Investor Regional Center Program (not the EB-5 Program): See below. The EB-5 Program will continue to operate.
• E-Verify: See below.
• Conrad 30 Waiver Program for J-1 medical doctors: This program allows J-1 doctors to apply for a waiver of the two-year foreign residence requirement after completing the J-1 exchange visitor program. The expiration only affects the date by which the J-1 doctor must have entered the U.S.; it is not a shutdown of the Conrad 30 program entirely.
• Non-minister religious workers: This special immigrant category allows non-ministers in religious vocations and occupations to immigrate or adjust to permanent resident status in the U.S. to perform religious work in a full-time, compensated position.
EB-5 Immigrant Investor Regional Center Program
The EB-5 Immigrant Investor Regional Center Program expired at the end of the day on December 21, 2018, due to a lapse in congressional authorization to continue the program. All regional center applications and individual petitions are affected. USCIS will not accept new Forms I-924, Application for Regional Center Designation Under the Immigrant Investor Program, as of December 21, 2018. Any Forms I-924 pending as of that date will be put on hold until further notice.
Regional centers should continue to submit Form I-924A, Annual Certification of Regional Center, for fiscal year 2018.
USCIS will continue to receive regional center-affiliated Forms I-526, Immigrant Petition by Alien Entrepreneur, and Forms I-485, Application to Register Permanent Residence or Adjust Status, after the close of business on December 22, 2018. As of that date, USCIS will put unadjudicated regional center-affiliated Forms I-526 and I-485 (whether filed before or after the expiration date) on hold for an undetermined length of time.
All Forms I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status, filed before or after the expiration date, will not be affected by the expiration of the program.
E-Verify and E-Verify services are currently unavailable due to a lapse in government appropriations. Employers will be unable to access their E-Verify accounts to enroll in E-Verify; create an E-Verify case; view or take action on any case; add, delete or edit any user account; reset passwords; edit company information; terminate accounts; or run reports. Employees will be unable to resolve E-Verify Tentative Nonconfirmations (TNCs).
To minimize the burden on both employers and employees, USCIS has implemented the following policies:
• The “three-day rule” for creating E-Verify cases is suspended for cases affected by the unavailability of E-Verify.
• The time period during which employees may resolve TNCs will be extended. The number of days E-Verify is not available will not count toward the days the employee has to begin the process of resolving their TNCs.
• USCIS will provide additional guidance regarding the “three-day rule” and the time period to resolve TNCs deadlines once operations resume.
• Important: Employers may not take adverse action against an employee because the E-Verify case is in an interim case status, including while the employee’s case is in an extended interim case status due to the unavailability of E-Verify.
• Federal contractors with the Federal Acquisition Regulation (FAR) E-Verify clause should contact their contracting officer to inquire about extending federal contractor deadlines.
Several free E-Verify resources are still available.
For information on interim cases statuses and E-Verify resources see E-Verify publications (https://www.e-verify.gov/employers/employer-resources) and Questions and Answers (https://www.e-verify.gov/about-e-verify/questions-and-answers). USCIS recommends that all employers and employees refer to the E-Verify User Manuals or Guides (https://www.e-verify.gov/employers/employer-resources?resource=27) and the E-Verify website (https://www.e-verify.gov/) for questions and answers, and encourages E-Verify Employer Agents to see the Supplement Guide for E-Verify Employer Agents (https://www.e-verify.gov/supplemental-guide-for-e-verify-employer-agents).
The lapse in government appropriations does not affect Form I-9, Employment Eligibility Verification requirements.
Employers must still complete Form I-9 no later than the third business day after an employee starts work for pay, and comply with all other Form I-9 requirements outlined in the Handbook for Employers (M-274) (https://www.uscis.gov/i-9-central/handbook-employers-m-274) and on I-9 Central (https://www.uscis.gov/i-9-central).
myE-Verify is unavailable and employees will not be able to access their myE-Verify accounts to use Self Check, Self Lock, Case History, or Case Tracker. However, employees may visit the Resource Center (https://www.e-verify.gov/mye-verify/resource-center) and Employee Rights Toolkit (https://www.e-verify.gov/employees/employee-rights-toolkit) for information on their rights and roles in the Form I-9 and E-Verify processes.
The following webinars are cancelled: Form I-9; E-Verify Overview; E-Verify in 30; E-Verify for Web Services Users; Federal Contractor E-Verify; E-Verify for Existing Users; myE-Verify and Employee Rights. However, employers and employees may view the Form I-9 On-Demand Webinar (https://www.uscis.gov/i-9-central/learning-resources).
Form I-9, E-Verify and myE-Verify support representatives are not available to respond to inquiries.
DOS: Passport and Visa Services
At this time, scheduled passport and visa services in the United States and at U.S. Embassies and Consulates overseas will continue during the lapse in appropriations as the situation permits. The National Visa Center, National Passport Information Center, and Kentucky Consular Center will still accept telephone calls and inquiries from the public.
If you have a scheduled appointment at a DOS passport agency or center, plan on keeping your appointment. If you need to cancel your appointment, you may do so by visiting the Online Passport Appointment System or by calling 1-877-487-2778. If you have a scheduled appointment at a passport acceptance facility and need to cancel your appointment, contact the facility directly.
The Department of Labor’s (DOL’s) Office of Foreign Labor Certification (OFLC) assures employers and other interested stakeholders that the temporary lapse in appropriations for some federal government programs and activities does not directly impact the administration of OFLC programs. A full year appropriations through September 30, 2019, for all DOL program and activities was enacted by Congress on September 28, 2018. The OFLC National Processing Centers are open and the iCERT System is operating as normally scheduled.