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.
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.