How a Government Shutdown Likely Affects Immigration Agencies

4909285606_bb1b241836_bThe government’s fiscal year ends today, and without legislation authorizing spending to continue, whether for the full fiscal year or even a few weeks, many federal offices and services will be shuttered starting tomorrow. Unfortunately, the chances the United States government will avoid a shutdown are low. The Senate has tabled the House-approved spending bill, which defunds the Affordable Care Act, and sent it back to the House, but it is unlikely that a consensus will be found before the midnight deadline. This means that beginning Tuesday, an estimated 800,000 to 1 million federal employees will be furloughed and government offices and national parks will close. Details of the impact of the shutdown are emerging and the situation is fluid, but based on what we do know and what happened the last time the federal government shut down in 1996, here is what likely will happen:

The Department of Homeland Security will still operate. This includes Customs and Border Protection, the Coast Guard, Immigration and Customs Enforcement, and U.S. Citizenship and Immigration Services (USCIS).  The borders will remain open and USCIS will continue to operate, including processing green card applications, but E-verify will not be operating. Delays should be expected as each agency, especially USCIS, rely on other agencies that may be closed.

Already strapped Immigration Courts will be slowed down. Federal courts have enough income from fees to remain open for about 10 business days after shutdown. The Executive Office for Immigration Review (EOIR) within the Department of Justice will remain open, but of the 1,339 employees employed by EOIR, only 402 will be in the office after government shutdown. Of those 402 employees, only 153 are attorneys. Processing the cases of individuals in detention will, most likely, “be considered an essential function” for the 153 attorneys still going into the office. However, EOIR expects the government shutdown to “affect hearing times.”

New H-1B filings will be affected; existing H-1B visas likely will not be. Lawyers are expecting that new H-1B filings will be delayed, but existing H-1B (and H-2B and E-3) visa holders “must continue to be paid at the full rate specified on their visa documentation” or their employers will have to file further paperwork to amend their visas.

Visas to the United States and passport processing will be delayed. During the last government shutdown in 1996, approximately 20,000-30,000 visa applications by foreigners went unprocessed for each day offices were closed and 200,000 applications for passports of U.S. citizens stalled.

In addition to delaying visas and further slowing down immigration courts, a government shutdown will affect many Americans personally. For example, veterans will wait for their disability benefits, pensions, or educational benefits, as their claims may be delayed. Vacationers will be turned away from government-funded museums and national parks. Small business owners that have applied for a loan from the Small Business Administration will have to wait. Head Start centers that “promote school readiness” for children from low-income families will close. In contrast, the immigration system, by virtue of its connection to Homeland Security and the existence of many fee-funded programs, will roll on, but more slowly, which is likely to further exacerbate the impact of a broken immigration process badly in need of reform.

Photo Courtesy of Timmons Pettigrew.

UPDATE

During the government shutdown, the Department of State is continuing to provide passport and visa operations as well as critical services to U.S. citizens overseas because these activities are fee-funded and are not affected by the lapse in appropriations. Originally, this post reported that visa processing would only continue for emergencies. That sentence has been removed.  More information on the ongoing shutdown can be found here.

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