Immigrant Work and Travel Could Be Affected if Government Shuts Down

The federal government is currently funded through this Friday, December 21. As of today, it is unclear whether Congress and President Trump will agree to continued funding past that date. Among other things, President Trump wants Congress to set aside $5 billion to continue construction of a physical wall along the U.S.-Mexico border.  It appears he doesn’t have the votes to get that funding, however.

If a partial government shutdown occurs after midnight on Friday, international travel may be immediately affected during the heavy travel season. International travelers who planned to renew nonimmigrant visas while abroad could be delayed in returning to the United States if a shutdown occurs. Those traveling with unexpired visas are not likely to be affected by a shutdown: in prior government shutdowns, U.S. Customs and Border Protection (CBP) employees were considered essential government personnel, necessary for national security and continued to operate normally at all ports of entry and border posts.

A shutdown could also affect immigration processing related to employment. There are four immigration programs, including the EB-5 Regional Center program, whose statutory authorization is tied to the remaining government funding bills.

The State Department funding bill has not been passed, and consular operations have been subject to prior government shutdowns. U.S. citizen services have continued overseas as an “essential” government function. Visa issuances and consular interviews, however, could be suspended with only limited (humanitarian emergency) exceptions. Those planning overseas travel during the next few weeks who need a new visa stamp to reenter the United States should note that their consular interviews should be scheduled as far before December 21 as possible. Since visas normally take one to two business days at least to be issued, even travelers with interview dates early this week could be delayed in receiving their visas. Appointments after December 21 could be cancelled and seriously delayed.

Those needing extensions of stay or changes of employer in the United States would likely not be affected by a partial government shutdown. In prior government shutdowns, The U.S. Citizenship and Immigration Services (USCIS) has been open and conducting business as usual even when the rest of the U.S. federal government shuts down. USCIS is a fee-based government agency, and therefore a government shutdown should not affect the agency’s normal operations. The current administration, however, could issue a different legal interpretation and require USCIS to shut down as part of the government shutdown. Since the Department of Labor has had its full-year funding authorized, however, it should not cease operations the way it did during prior shutdowns, meaning that Labor Condition Applications (LCAs) and labor certification (PERM) applications should be able to be filed after December 21.

In addition to the disruption of agency operations, those using one of four immigration programs would likely not be able to use those programs if there is a shutdown. For those who use E-Verify when hiring new workers, the system would not be operational during a government shutdown. Employers would have to plan to run E-Verify checks after the shutdown for new hires during the shutdown, since workers could be hired and an I-9 work authorization verification could be completed for them, but the E-Verify system would be unavailable.

Individuals would also be unable to file I-526 petitions for investor immigration status if they are applying pursuant to the regional center program. Other EB-5 petitions could be filed during the shutdown, but the statutory authorization for the EB-5 regional center program would be suspended during a shutdown. Similarly, H-1B petitions under the Conrad 30 J-1 Waiver program for physicians and petitions under the Special Immigrant Nonminister Religious Worker program would be suspended during the shutdown.

If Congress and the President are unable to reach an agreement, the federal government will close at 12:01 AM on Saturday, December 22, 2018.

2018-12-18T16:48:09+00:00December 18th, 2018|