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What Immigration Services Are Open During Government Shutdown?

by Robert Herreria, published
The shutdown of the U.S. federal government this week is a very disruptive event, and U.S. immigration is not unaffected.  While some immigration agencies and services continue to operate, the shutdown will cause delays and headaches for many people waiting on immigration cases or needing services.

Who is Still Open for Business?

The federal shutdown affects any agencies, offices, and personnel not considered “essential” or who do not have independent sources of funding.  For U.S. immigration, this means that some components can remain open while others cannot.  Compounding the problem is that responsibility for some immigration or immigration-related procedures are spread out through a number of different agencies and governmental bodies, including some departments outside the “traditional” immigration agencies. The main agency holding the lion’s share of responsibility on immigration matters is the Department of Homeland Security (DHS), an umbrella agency containing Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP), and U.S. Citizenship and Immigration Services (USCIS).  Each of these subordinate agencies have defined roles in how our immigration system works, but these roles and processes are often intertwined with one another and with government agencies outside the DHS.  USCIS is the main body that handles petitions and applications filed for most immigration cases, accepting filing fees for the majority of these filings.  USCIS can continue to run because it is funded by these fees.  However, USCIS also relies on duties carried out by other parts of the DHS and on other agencies and bodies outside of DHS.  This means that some of the work USCIS does can be slowed down or even stopped because another agency is not running or has reduced capacity. ICE is the agency handling enforcement of the immigration and customs laws, as well as prosecution in removal and deportation hearings.  ICE is funded by budget allocations made by Congress, and is considered “essential” in part due to national security concerns.  However, in a shutdown some of ICE’s components do not receive funding and have to be reduced.  Like USCIS, ICE also relies on other agencies, like the FBI, for background checks, law enforcement information, and other resources.  Delays or stops in these resources can hamper ICE operations. CBP is similar to ICE, in that although CBP is funded through Congress budget allocation, CBP’s functions are also considered essential to national security.  Again, some functions in CBP that do not promote or ensure national security must be scaled back.  CBP also relies on some processes and functions of other government agencies, and slowdowns or closures in those agencies can impact CBP.  The Department of Labor (DOL), while not a part of DHS, holds a lot of responsibility in immigration matters related to work visas.  These include Labor Certifications for employees seeking permanent residence as well as some wage certifications for many nonimmigrant work visas.   The DOL is considered mostly non-essential and in the wake of the shutdown has mostly ceased its immigration-related work. The Department of State (DOS), also separate from the DHS, oversees the annual allocation of immigrant visas which lead to permanent residence.  The DOS also runs the United States embassies and consulates around the world.  Although some of the DOS’s functions are essential to national security, much of the DOS has reduced its operations.  U.S. embassies and consulates remain open but are running on reserve funds that could run out if the shutdown continues for an extended period.  This means that visa interviews and issuance can potentially be delayed and even stopped. Last, the Department of Justice (DOJ) is an agency outside of the DHS that is in part charged with running the Immigration Court system, also known as the Executive Office for Immigration Review (EOIR).  The EOIR is primarily responsible for hearing removal and deportation cases.  During the shutdown, these Courts have stopped all functions except for hearing cases for detained individuals, whose Constitutional rights are at stake and must be afforded expedient processing of their cases.  Hearings for other cases are being cancelled, to be rescheduled at a later, unspecified date.  This of course adds to the backlog for an already-overburdened Immigration Court system. Other agencies, like the Federal Bureau of Investigations, the Internal Revenue Services, Health and Human Services, and others might seem unrelated to immigration, but their various functions and responsibilities affect how immigration processes function.  For example, FBI criminal background checks are crucial to many immigration petitions and applications, and Health and Human Services determinations on poverty levels and potential illnesses of public significance can be key in approving or denying cases.  Delays or stoppages in these agencies can also delay or stop immigration processes as well.

What’s Working and What’s Not Working?

USCIS is still functioning at full capacity and processing cases, but that processing will likely hit snags and delays. Also, some petitions for certain types of work visas, especially H-1B cases and Labor Certification for employment-based Permanent Residence cases, will experience delays because of the cessation of operations in the Department of Labor. Immigration Court cases involving removal or deportation will be heavily delayed, except for those persons held in detention.  Even then, delays in law enforcement agencies and in the USCIS and CBP can potentially cause impacts. Consular Services will continue for the immediate future, but if the shutdown extends into the long term, nonimmigrant and immigrant visa issuance will be affected.  Also, current visa applications may be delayed by incomplete background checks and other delays in other related government services. Overall, . You should contact an immigration attorney if you have questions on your case and the shutdown. ____________________________ Robert Herreria is an attorney with Luna & Associates, specializing in immigration law, including nonimmigrant and employment-based visas, work authorization, family-based immigration, permanent residence, and deportation/removal defense.

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