The partial federal government shutdown has ended and operations have resumed, but immigration-related delays could linger. Following are updates on various government agencies to help navigate the shutdown aftermath.
All E-Verify employers were affected by the E-Verify “blackout” caused by the shutdown, regardless of whether they employ foreign nationals. E-Verify is now back online. USCIS issued a reminder that the Form I-9 requirements were not affected during the shutdown, and offered advice for those affected by the E-Verify shutdown, which can be found at: http://www.uscis.gov/USCIS/Verification/E-Verify/E-Verify_Native_Documents/E-Verify_and_I-9PublicWebsitesStartupMessage.pdf.
Here are the highlights:
Employees who received a Tentative Nonconfirmation (TNC)
If an employee had a TNC referred between September 17, 2013 and September 30, 2013 and was not able to resolve the TNC due to the federal government shutdown, add 12 federal business days to the date printed on the ‘Referral Letter’ or ‘Referral Date Confirmation.’ Employees have until this new date to contact the Social Security Administration (SSA) or the Department of Homeland Security (DHS) to resolve their cases. If you have an employee who decided to contest his or her TNC while E-Verify was unavailable, you should now initiate the referral process in E-Verify. Employers may not take any adverse action against an employee because of a TNC.
Employees who received a SSA Final Nonconfirmation (FNC) or DHS No Show result
If an employee received a Final Nonconfirmation (FNC) or No Show because of the federal government shutdown, please close the case and select “The employee continues to work for the employer after receiving a Final Nonconfirmation result,” or “The employee continues to work for the employer after receiving a No Show result.” The employer must then enter a new case in E-Verify for that employee. These steps are necessary to ensure the employee is afforded the opportunity to timely contest and resolve the Tentative Nonconfirmation (TNC) that led to the FNC result.
Creating Cases: Three-Day Rule
You must create an E-Verify case for each employee hired during or otherwise affected by the shutdown by November 5, 2013. If you are prompted to provide a reason why the case is late (i.e., does not conform to the three-day rule), select ‘Other’ from the drop-down list of reasons and enter ‘federal government shutdown’ in the field.
Federal Contractor Deadlines
During the federal government shutdown, federal contractors could not enroll or use E-Verify as required by the federal contractor rule. If your organization missed a deadline because E-Verify was unavailable or if it has an upcoming deadline for complying with the federal contractor rule, please follow the instructions above and notify your contracting officer of these instructions.
U.S.Department of Labor (DOL)
The DOL shutdown probably had the most direct impact on immigration cases, because the LCA (Labor Condition Application) system and the PERM system for labor certification applications were both out for the duration.
The DOL is now officially open, which means that the following processes will resume: (1) Labor Condition Applications, (2) Prevailing Wage Determinations, and (3) PERM Labor Certification Applications. As a result of the DOL coming back online, H-1B petitions, which must include certified Labor Condition Applications, may now resume as well. However, we expect a significant delay as USCIS officers sift through the backlog, and employers should anticipate longer processing times for the remainder of the year.
US Citizenship and Immigration Services (USCIS)
USCIS was not affected by the shutdown for the most part (with the exception of E-Verify), because the agency was deemed self-funded by filing fees. Practitioners across the U.S. have not experienced any unusual delay during the shutdown and there should be no changes in processing, other than the expected H-1B backlog. USCIS’ Ombudsman Offices were closed during the shutdown, but they have been re-opened. See: www.uscis.gov
Department of States (Embassies and Consulates) (DOL)
The shutdown did not affect the operation of US embassies and consulates overseas, and the reopening of the government should likewise have no effect on them. In other words, business as usual for the embassies and consulates. See: www.state.gov
Immigration Courts (EOIR)
Immigration Courts were closed for non-detained cases during the shutdown but all courts have been opened today. Cases affected by the shutdown are being rescheduled by their respective courts. Individuals with cases before immigration courts that have been affected by the shutdown should contact the courts and their attorneys for the latest update. We anticipate some delays in the court system for the remainder of the year as they shuffle already overloaded dockets.
Immigration and Customs Enforcement (ICE)
ICE operations were largely unaffected during the shutdown because ICE is a law enforcement agency. The shutdown only affected ICE’s website, as it was not being managed or updated. The website still shows news dated “09/30/2013” and it will be several days or weeks before the website will be up to speed again. See: www.ice.gov
CBP (Customs and Border Protection)
U.S. ports-of-entries were not affected during the shutdown. However, its website was not managed during the shutdown. Only one entry was posted in its October “Newsroom” today, indicating that updates are being done. It will be a few days before the website will be fully updated. See: www.cbp.gov
Social Security Administration (SSA)
SSA was close during the shutdown, resulting in delays in processing social security number requests. While its function has resumed, we expect a backlog in social security number requests and increased processing times.