Post-Shutdown Update: Immigration-Related Agencies

Some, but not all, U.S. immigration-related agencies were closed during the recent 35-day partial government shutdown. Now, immigration processing centers, courts, and the E-verify system to check immigration status and work authorization all are up and running again – at least until February 15.

Department of Homeland Security (DHS)

During the shutdown, DHS's E-Verify services were completely unavailable, and employers enrolled in E-Verify were unable to comply with their obligation to check the employment authorization of new hires and federal contract workers. The E-Verify office agreed that during the shutdown hiring could continue, and the "three-day rule" for creating E-Verify cases was suspended.

• Complete E-verify checks now. Starting January 28, 2019, employers registered with E-Verify must revert to using the system to prepare or complete any cases for employees hired during the shutdown, and do so within three days of January 28, 2019 – by January 31, 2019 – to be fully compliant.
• Annotate I-9 forms. During the shutdown, employers needed to continue to complete Form I-9s no later than the third business day after an employee starts work for pay. For I-9s completed during the shutdown, on page 2 in the "Additional Information" box, the employer should write, "E-verify unavailable due to government shutdown from 12/21/2018 to 1/28/2019."
• Resume E-Verify registration. Employers wishing to register for E-Verify participation are able to do so again.

U.S. Citizenship & Immigration Services (USCIS)

• No action required. USCIS operations are fee-funded, and the agency remained open during the shutdown; therefore, no action is required on pending cases.
• Check case status. Employers or individuals with pending cases may check case status at uscis.gov/casestatus. As of January 28, 2019, this process now is available for asylum cases, in addition to employment-based and other cases.
• Convert long-pending H-1B petitions to premium processing (optional). Unrelated to the shutdown, on January 28, 2019, USCIS resumed premium processing for all fiscal year (FY) 2019 H-1B cap petitions. Petitioners may pay a filing fee of $1,410 to request 15-day premium processing on long-pending petitions. Premium processing remains suspended for other types of H-1B petitions until February 19, 2019.

Customs and Border Protection (CBP)

• No action required. CBP continued to operate at the land, air and sea ports of entry.
• Check case status, for pending waivers. However, the Admissibility Review Office (ARO), which adjudicates waivers of inadmissibility, was closed. The shutdown will impact the already-lengthy backlog that results in a wait of around one year for waiver adjudication. Have your attorney check the status of waiver applications sent to the ARO during the shutdown. There is not an on-line option for checking the status.

Department of State (DOS)

• No action required. The State Department's visa services are fee-funded, and visa and passport processing remained on-going during the shutdown.

Department of Labor (DOL)

• No action required. Because the DOL's funding already had been appropriated, labor condition application and PERM processing was not affected by the shutdown.

Immigration Court

• Check on hearing dates. Immigration hearings for "non-detained" cases were canceled during the shutdown. Hearings now are being rescheduled, some for 2020 or beyond. To check on hearing dates, call 1-800-898-7180.

Federal Courts

• Check with the Clerk of the Court for any changes to hearing dates or deadlines. Civil litigation in Federal courts with immigration cases, such as claims of wrongful H-1B denials, was suspended.

The government is funded until February 15, 2019. If bipartisan leaders cannot reach an agreement, the government could shut down once again.

Immigration law is increasingly complex. Administrative policy changes can have far-reaching implications and impose a level of unpredictability. Employers can minimize the negative impact by having qualified legal counsel review immigration history for current and future employees.