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Practice Note
Government Shutdown Updates (Updated 10/11/13)

Latest Updates:

CIS Ombudsman: The CIS Ombudsman's Office will be closed and will not be accepting any inquiries through their online case intake system.

DOL: OFLC functions are not "excepted" from a shutdown and its employees would be placed in furlough status should a lapse in appropriated funds occur. Consequently, in the event of a government shutdown, OFLC will neither accept nor process any applications or related materials (such as audit responses), it receives, including Labor Condition Applications, Applications for Prevailing Wage Determination, Applications for Temporary Employment Certification, or Applications for Permanent Employment Certification.

OFLC's web site, including the iCERT Visa Portal System and the PERM system, would become static and unable to process any requests or allow authorized users to access their online accounts.

AILA has received reports from members that common courier services (e.g., FedEx) have been unable to deliver to DOL.

DOL's Office of Administrative Law Judges (including BALCA) will be unable to perform any case-related activities, including conducting hearings. Hearings that have been previously scheduled will therefore be cancelled prior to the date of the hearing, and they will not be rescheduled for hearing until an appropriations bill or continuing resolution takes effect. Deadlines that occur during the shutdown will be suspended.

AILA has contacted DOL and USCIS in an effort to obtain information as to how members should proceed with cases that are impacted by the DOL shutdown. While AILA continues to press for answers, in the absence of official guidance from the agencies, members may consider the following approaches (AILA Doc. No. 13100820).

CBP: CBP hosted a conference call with travel and trade industry stakeholders on October 1, 2013, to discuss actions CBP is taking in response to the lapse in appropriations. Acting Commissioner Thomas Winkowski led the discussion. Highlights from the call include:

  1. All Ports of Entry are open. There is even no change in using overtime to handle flight arrivals and CBP continues to accept requests from airlines for new service. The Border Patrol and the Office of Air and Marine are also continuing with operations.
  2. The Admissibility Review Office (ARO) is open and continues to function.
  3. All global entry enrollment centers are open and interviews are continuing and all Trusted Traveler programs continue to function as usual.
  4. The CBP website will not be maintained during the lapse in appropriations.
  5. Approximately 6,000 CBP positions, primarily held by technicians and support staff, are impacted by the lapse in appropriations.

DHS: Due to the lapse in federal, DHS’s website will not be actively managed.

DOJ OSC : DOJ OSC is closed other than essential litigation functions.

DOS: The Department will continue as many normal operations as possible; operating status and available funding will need to be monitored continuously and closely, and planning for a lapse in appropriations must be continued. DOS will continue passport and visa operations as well as provide critical services to U.S. citizens overseas as these activities are fee-funded and not affected by the lapse in appropriations. Review their “Guidance on Operations” for more information.

EOIR: EOIR has indicated that its response to a potential shutdown is the same as it was in 2011. EOIR has been advised to "put its shutdown plans in place." As with other agencies, personnel who are not considered "essential" will be furloughed. EOIR has indicated that the detained docket would likely be considered an essential function and would therefore be able to continue in operation.

Update from EOIR on October 1, 2013: Court functions that support the detained caseload will continue, but other functions are suspended. The Board of Immigration Appeals (BIA) is processing emergency stay requests as well as cases where the alien is detained, including case appeals, motions, federal court remands, and bonds. Please review their notice for more information.

Update from EOIR on October 2, 2013: EOIR’s operations are limited during the lapse in government funding, so staff at the immigration courts and the Board of Immigration Appeals will not be available for photo identification verification to complete the eRegistration process. Upon its return to normal operations, EOIR will again be able to process eRegistration applications. For questions regarding eRegistration, please contact eRegistration.info@usdoj.gov. Please note that response time will be delayed during the lapse in government funding.

Update from EOIR October 7, 2013: Though hearings on non-detained cases are suspended nationwide, EOIR has informed AILA that practitioners should still be able to file documents in non-detained cases. AILA reminds members to comply with all local immigration court orders and BIA filing deadlines during the shutdown (AILA Doc. No. 13100705). Members are also encouraged to contact EOIR chapter liaisons or contact the court administrator to confirm local procedures.

Update from EOIR on October 9, 2013: EOIR released the following alert, “Immigration Court Filings During the Lapse in Government Funding,” describing how immigration courts are accepting filings and handling filing deadlines during the lapse in government funding (AILA Doc. No. 13100942).

ICE: From ICE Community Outreach - ICE detention and enforcement operations shall continue. ICE chief counsel trail attorneys will still work on the detained docket only during a shutdown. Please coordinate with your local Chief Counsel Office on more specifics. The ICE Community and Detainee Helpline will remain operational.

ICE SEVP: From SEVIS - Please note, regardless of the current government shutdown, the Student and Exchange Visitor Program’s (SEVP’s) offices will remain open. This continuation of operations is possible because SEVP is a fee-funded program and does not receive any government-appropriated funds. During this time, designated school officials and F and M students must continue to meet all regulatory requirements. SEVP will remain open and available to answer any inquiries that you may have. If you have any questions, please contact the SEVP Response Center at 703-603-3400 or sevp@ice.dhs.gov.

USCIS: All USCIS offices worldwide are open and individuals should report to interviews and appointments as scheduled. E-Verify is currently unavailable due to a government shutdown. Please see their notice for policies implemented due to E-Verify’s unavailability. AILA asked USCIS if it would accept H-1B petitions without a certified LCA and USCIS indicated it will answer “soon” (AILA Doc. No. 13100260).

DHS OIG: The majority of DHS OIG staff has been furloughed due to the lapse in appropriations.

SSA: SSA chart indicating which activities will continue or cease during the lapse in Federal appropriations and shutdown of agency operations.

Summary of Government Services:

Agency Memos:

From September 25, 2013: AILA Liaison has reached out to government agencies for an update on contingency plans due to the possibility of a government shutdown on or after October 1, 2013. To date, no information in response has been received. It is reasonable to believe, however, agency plans in development in the event of a government shutdown next week will mirror plans developed in anticipation of a government shutdown in 2011. For example, many of the USCIS functions will continue, since they are primarily funded through user fees. In contrast, because they are funded through appropriations, expect DOL functions to be interrupted. We will post further information as it is released.

From 2011

As Congress continues its budgetary deadlock, the possibility of a government shutdown looms larger by the minute. If Congress is unable to reach accord on Friday, the government will close at midnight, Saturday April 9.

In general, if the government shuts for budgetary reasons, all but "essential" government are furloughed and not allowed to work. So what does this mean for immigration agencies?

USCIS: Update: USCIS has confirmed to AILA Liaison that it will be operating, except for E-Verify, if the government does shut down.

DOS Update: DOS confirmed to AILA Liaison that if there is a shutdown, the only visa processing will be for "life or death" emergencies. In prior budget-related shutdowns, DOS has continued to provide diplomatic visas and has been wont to say "a really, really important business meeting is not life or death."

CBP: Inspection and law enforcement are considered "essential personnel," though staffing may be more limited than usual. The borders will be open, and CBP is unsure of how the shutdown will affect the processing of applications filed at the border.

EOIR: EOIR has been advised to "put its shutdown plans in place." As with other agencies, personnel who are not considered "essential" will be furloughed. EOIR has indicated that the detained docket would likely be considered an essential function and would therefore be able to continue in operation.

DOL: Update: OFLC confirmed that it would cease processing all applications in the event of a government shutdown. DOL is making plans for a possible shutdown. If there is a shutdown, DOL personnel will not be available to respond to e-mail or other inquiries.

Source: "AILA InfoNet Doc. No. 11040730 (posted Oct. 11, 2013)"

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