Congressional negotiations on federal spending for the remainder of FY 2019 remain very active. If Congress and the President can't come to an agreement on a spending bill or continuing resolution by midnight December 21, 2018, approximately 25% of government functions will shut down.
When it comes to immigration, agencies that would be affected by a government shutdown include the Department of Homeland Security and its immigration-related components (CBP, ICE, USCIS, CIS Ombudsman), the Department of Justice (EOIR), and the Department of State.
The Department of Labor (DOL) would not be affected by a shutdown this year. On September 28, 2018, President Trump signed a minibus appropriations bill funding DOL through the end of September 30, 2019.
Generally, if the government shuts for budgetary reasons, all but "essential" personnel are furloughed and are not allowed to work.
USCIS: USCIS is a fee-funded agency, so most business will continue as normal. Exceptions are -Verify, the EB-5 Immigrant Investor Regional Center Program, Conrad 30 J-1 doctors, and non-minister religious workers.
DOS (Department of State): Visa and passport operations are fee-funded and should not be impacted by a lapse in appropriations, but operating status and funding will need to be monitored closely. If visa operations are affected, consular posts will generally only handle diplomatic visas and "life or death" emergencies.
CBP (Customs and Border Protection): Inspection and law enforcement personnel are considered "essential.” Ports of entry will be open; however, processing of applications filed at the border may be affected.
ICE (Immigration and Customs Enforcement): ICE enforcement and removal operations will continue, and ICE attorneys will typically focus on the detained docket during a shutdown. The ICE Student and Exchange Visitor Program (SEVP) offices are unaffected since SEVP is funded by fees.
EOIR (Executive Office for Immigration Review): EOIR's detained docket is typically considered an essential function and would therefore continue to operate. During the 2013 shutdown, EOIR continued to accept court filings, even in non-detained cases.
DOL (Department of Labor): The OFLC would cease processing all applications in the event of a government shutdown, and personnel would not be available to respond to e-mail or other inquiries. OFLC's web-based systems, iCERT and PERM, would be inaccessible, and BALCA dockets will be placed on hold.
CIS Ombudsman: The DHS Office of the CIS Ombudsman would close and would not accept any inquiries through its online case intake system.
For any questions about how a shutdown would affect you or your employees, call Elaine Martin, Dallas immigration lawyer.
The US Department of Homeland Security (DHS) announced a proposed rule on Friday, November 30, 2018. The new provisions, if approved. would implemented two main changes to the current way of conducting the H-1B cap lottery. The changes would only affect employers who are filing new, cap-subject, petitions. The process for H-1B extensions or amendments is unchanged.
(a) Employers would have to register online before submitting a full H-1B petition. The registration process would ask for information about the company and about the foreign worker. Employers need to send a separate registration for each proposed H-1B employee and registration will start 14 days before the cap season starts (April 1).
(b) USCIS will change the order in which it selects cases in the lottery. Currently, CIS selects the 20,000 Master's degree cap petitions first. Unsuccessful applications are then added to the general pool, and a second lottery is conducted for the 65,000 regular H-1B cap number. The new rule proposes to reverse this - selecting the 65,000 first and then selecting the 20,000 Master's cases from those that were not selected in the first round. CIS estimates that this change would result in approximately 16% more (or 5,340 workers) Master's degree holders being selected in the lottery.
Employers will only need to file full petitions and supporting evidence if their case is selected in the H-1B lottery. This should reduce the cost to employers, who have needed to file a full H-1B package even if the case was not ultimately chosen for processing. The full petitions would be filed within 60 days of the lottery, and CIS might allow for different filing periods to stagger the workload.
For more information about these changes, or other immigration questions, contact Elaine Martin for a free initial phone consultation.
Ms. S. and her husband wanted to invest in a hotel/housing business in an under-served part of the United States. Ms. S. had created a US company, investigated opportunities and invested a small amount of the start-up costs.
After starting the visa application process themselves, the couple contacted Elaine Martin to file an E-2 package with the consulate in Toronto.
We had very little time to prepare the application before the clients hoped to enter the US. In addition, there was no business plan and a complicated source of funds trail. Elaine Martin worked with a third party to create the business plan (requiring multiple rewrites), researched the local business needs by contacting local government officials to discuss the housing shortage, prepared a detailed spreadsheet tracing the funds, and compiled the E-2 package to conform to the consulate's strict requirements regarding format and size.
On November 14, 2019, Ms. S and her husband were thrilled to be approved for the E-2 visas in Toronto.
The Martin Law Office wishes the couple many years of success and looks forward to seeing the new business expand and grow!
I don't usually toot my own horn in this blog, but I am particularly happy with this outcome.
A client was referred to me by a larger law firm. The client (a company in Europe) needed to send an employee to the US for about six months. The client (Company A) was contracted by Company B to provide telecom services, which would be performed for Company C. My new client was worried about losing the lucrative contract with Company B if they couldn't find a solution.
Normally, a multinational transferee would come to the US in L-1 status. However, the contracting arrangement made that option more difficult, because of USCIS restrictions on placing L-1 holders at third-party worksites. Further, the L-1 processing time meant that the assignee might not be approved when needed (assuming he was approved at all).
We considered an E-2 (treaty investor), but Company A was ultimately owned by individuals who did not qualify for treaty status.
The answer was a visa called "B-1 in lieu of H-1B." This is not a very common visa, but perfect for this situation. The visa allows people to come to the US to perform services that would normally qualify for H-1B (specialty occupation) status, if the worker is staying on the foreign payroll, being paid from outside the US and the assignment is very short. The visa is not the same as a regular B-1 business visitor, and requires specific paperwork for the consulate application.
We drafted a detailed letter for the consulate, explaining how the foreign national and assignment qualified and using appropriate legal arguments. To our delight, the visa was approved a few days later!
The client was thrilled (as evidenced by the number of exclamation marks she used ;)) and I was almost as excited!
"They just called D_____ from the Embassy and they told him to go there tomorrow with his passport so that they can put the visa on it !!!
That was really quick!!! I can’t believe it’s true!!! J
Thank you so much Elaine!!!"
For information about this visa, H-1Bs, L-1s, or any other employment-based immigration, contact Elaine Martin for free initial consultation.
Elaine Martin has been practising US and global immigration law since 1997. She is an immigrant herself (from Ireland), so has a special understanding of the legal and emotional challenges involved in relocating to a new country.