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What Happens to Your Immigration or Citizenship Matter If There is a Government Shutdown?

In the world of immigration and citizenship law, our clients deal with many government agencies. My readers know that I like to cite directly to government sources; so, let’s take a look at the contingency plans of various federal agencies in case Congress puts us all over the fiscal cliff into a government shutdown next week. Keep in mind that things are changing by the hour. If ever there is a time for it, should there be a shutdown, patience will certainly be a virtue while our crazy Congress gets its act together. As of this writing today, none of the agencies have posted plain language-speak on their home pages to let the public know what they plan to do. The agency documents cited below have a lot of budget management-speak, and have been sent to the White House. This is my attempt to decipher and summarize them as they could affect our clients. Stay tuned to the news.

US Department of Homeland Security

Based on a September 27, 2013 US Department of Homeland Security contingency plan, here are some ways your immigration or citizenship case may be impacted:

1. US Citizenship and Immigration Services (USCIS:
USCIS is the benefits granting agency. It is largely funded by user fees instead of appropriations from Congress. USCIS is expected to continue working on change of status, extension, green card, citizenship and other benefits applications because it has “other funding sources” not related to appropriations, namely the fees you pay when you submit your application. But, because USCIS interacts with some other agencies to get background information and to do security checks, there could be some delays. Stay tuned about our local USCIS offices in the coming days.

On the other hand, employers will not be able to use E-Verify to verify work authorization status of new hires. This database program is either not considered essential to safety or national security or it is dependent upon Congressional appropriations.

2. Border Patrol and Inspections:
US Customs and Border Protection (CBP) is an essential agency necessary to protect national security. CBP will continue its inspection and investigation services. Its functions are considered important to national security and are deemed “law enforcement necessary for the safety of life and the protection of property.”

3. Immigration Customs and Enforcement (ICE)
Similarly, ICE functions are deemed “law enforcement necessary for the safety of life and the protection of property,” and their business should be conducted as usual. However, ICE attorneys involved in removal proceedings may be focused on detained and criminal cases or other ICE related matters because of the Immigration Court’s funding. See EOIR below.

4. Transportation and Security Agency (TSA)
Yes, you can still travel. TSA functions are also “necessary for the safety of life and the protection of property” and are essential to national security. However, there could be delays in other areas related to transportation.

5. Civil Rights and Civil Liberties (CRCL)
The complaint hotline will not be staffed during a shutdown.

The US State Department

The US State Department runs the National Visa Center and the US consulates and embassies abroad, both of which deal with visa eligibility and visa issuance. It also runs the US Passport Office. There are Passport Offices in the US and abroad at consular posts. The State Department’s contingency plans in case of “a lapse in appropriations,” depend upon whether any particular department has funding reserves:

1. Visa services at US Consulates and Embassies
Consular posts will be “100% operational as long as there are sufficient fees to support operations” or “residual balances.” Like USCIS benefits, most visa services are fee based. However, consular posts could be affected by funding of buildings, contracts and/or personnel. Complicated union contracts come in to play in most of these agencies as they affect staffing. Continued funding will be treated “case by case” and services that will continue will be those that that are necessary for emergencies involving “the safety of human life and the protection of property,” or are necessary to national security or the conduct of foreign affairs. Therefore, if you have an upcoming visa appointment, it may or may not go forward as originally scheduled. You will need to stay in touch with the consulate or your attorney.

2. Passport Offices
It appears based on the State Department memo that only those passport applications involving emergencies, the safety of human life or other national security, or conduct of foreign affairs will be issued. Similarly, passport offices located in consular or embassy posts may be operational depending upon the funding of the building and staff itself.

The US Department of Labor (DOL)

DOL manages the H-1B/E-3 Labor Condition Application process and PERM, the labor certification program for permanent residence plus the H-2A/H-2B labor elements of those visas. The DOL contingency plan states it will reduce the Employment and Training Administration to a skeleton staff of 28. This division runs the office of Foreign Labor Certification that in turn runs the various DOL related programs for several visa categories and permanent residence labor market testing as well as the Board of Alien Labor Certification Appeals. There will be no Administrative Law Judges on duty. And, it appears that there will be no work done in the foreign alien labor certification division applications. (See pages 2 and 17 of the DOL’s amendment to the 2011 contingency plan.)

Executive Office of Immigration Review
EOIR is in the US Department of Justice. It includes the Immigration Courts handling removal proceedings and the Board of Immigration Appeals. EOIR’s contingency plan states that “excepted employees” include those working on detained and criminal immigrant cases among other functions, which seems to infer that non-emergent or cases not related to national security will not be heard until Congress comes up with a budget and funding for FY2014 beginning October 1, 2013. Locally, word is that the Seattle Immigration Court would close, but the Tacoma Immigration Court located in the Northwest Detention Center should remain open.