Here we go again! The Department of Homeland Security (DHS) could potentially run out of money and shut down come Friday, Feb. 27, 2015. The issue arose from immigration amendments that the House attached to the proposed DHS funding bill last month. The amendments that were added to the bill would block any federal funds from being used toward President Obama’s executive orders to protect about 4 million undocumented immigrants from deportation and allow them to work. Further, the amendments would cease the Deferred Action for Childhood Arrivals program, which gives temporary legal status and work permits to undocumented immigrants who entered the U.S. as children. As of Feb. 25, 2015, the Senate Democrats have signed on with the Republican plan to get rid of the House provisions added to the bill. However, whether the bill will pass or not still looms. President Obama and DHS secretary Jeh Johnson have been calling on Congress to fully fund the department, saying temporary measures or a shutdown would jeopardize national security operations.
If the bill is not passed by Friday, Feb. 27, 2015, then approximately 30,000 of the DHS’s 240,000 employees will be furloughed. The remaining approximately 210,000 employees will still be employed, as their jobs are deemed “essential to the nation’s safety.” From an immigration perspective, the question becomes: how does a DHS shutdown directly affect the general public?
Obviously, there is no clear answer, as one cannot predict the future. Nevertheless, we can reminisce on the impact of the October 2013 shutdown as an indication of what may come. It is important to note, the current potential shutdown differs greatly from the 2013 shutdown as the current funding standstill does not affect the State Department or Labor Department, whose immigration functions should continue normally in the event of a DHS shutdown. In 2013, inter-agency functions, such as the Department of Labor’s issuance of Labor Condition Applications, which are required for certain types of immigration filings, were severely impacted. However, the current funding stalemate would have no such impact, as the current standstill only affects the DHS.
In 2013, due to its primarily fee-funded structure the U.S. Citizenship and Immigration Services (USCIS) had only minimal disruptions to adjudication services. USCIS offices remained open for interviews and appointments and incurred minor delays in processing. Therefore, even if the funding stalemate continues, immigrant and nonimmigrant petitions, including H-1B cap petitions, should be processed as expected. Understandably, individuals should anticipate slight delays in the processing of their petitions.
Most likely, the biggest impact from an immigration perspective will likely be to the E-Verify program, which is not funded by fees. In 2013, E-Verify ceased operation during the shutdown, severely affecting the program’s employment verification, Tentative Non-Confirmation (TNC), and Self-Check processes. However, the standard Form I-9 completion requirements remained in effect.
We will observe the conclusion of the DHS funding bill closely and hope that the DHS will receive their funding and maintain full operations. For current updates about the DHS funding bill and the impact on immigration services, please contact your Greenberg Traurig attorney.