The Impact of the Federal Government Shutdown On Your Immigration Case

By Nancy E. Miller & Frances E. Arroyo

October 1 is the beginning of the fiscal year for the United States government. Agencies that are dependent on government funding get their money through the budget that goes into effect at the beginning of the fiscal year.  This year, Congress failed to pass a budget and, as a result, many agencies are unable to continue to operate.  Only those government entities that are either self-funding or considered essential remain operational.  Some immigration–related agencies are self-funding.  Others are considered essential and remain operational despite being dependent upon government funds.  Other agencies or services will be unavailable until further notice.      

The United States Citizen and Immigration Services “USCIS” gets most of its money through the fees that applicants and petitioners pay when filing for benefits. It is self-funded.  As such, it is fully operational.  USCIS is continuing to accept applications and petitions.  It is continuing to schedule and conduct interviews on those applications and render decisions.  Applications serviced through USCIS include but are not limited to extension or change of nonimmigrant status, student visas, naturalization, adjustment of status to lawful permanent residence (green cards), family petitions for children, siblings, parents and spouses, removal of conditions, affirmative asylum and waivers of inadmissibility for prior misrepresentation, criminal convictions and unlawful presence bars. 

Since USCIS is open and operating, deadlines are still applicable and will be enforced.  Requests for further evidence have a specific due-date.  It must be complied with.  Appeals of denials of applications must be timely filed.

USCIS e-verify service is not operational and is shut down until further notice. 
The Department of State is not affected by the government shutdown.  U.S. Consulates are open and visas are being issued to those who apply and are eligible to receive them.  Applications for immigrant and nonimmigrant visas and for waivers of grounds of inadmissibility are being accepted for filing.  Pending consular application are being processed through the regular channels of operation. Interviews are being conducted.  The beginning of the fiscal year is also when additional visas become available.  Beneficiaries waiting for their priority date to become current may be scheduled for an interview during this time.  They should prepare for and attend the interview. 

The Executive Office of Immigration Review has been deeply affected by the government shutdown.  The only cases being heard in Immigration Court are those involving detained aliens (those in custody).  Those cases are proceedings normally.  However, non-detained Immigration Court is closed.  All non-detained cases are not being heard.  These cases will be rescheduled when the court is reopened. 

In addition, the non-detained court clerk’s office is closed for “in-person” filings.  However, we have been informed that the offices have a skeleton staff that is accepting mail.  Filing deadlines that have been set by judges or the Practice Manual must still be met.  In addition, certain deadlines are statutory – such as the one-year filing deadline for asylum cases.  Whether judges will consider a late filing due to extraordinary circumstances remains to be seen.  And, if so, how much time will be attributed to the shutdown is also an open question. 
The Board of Immigration Appeals is open.  Filing deadlines are being fully enforced.  Notices of appeal must be received by the Board no later than thirty days from the date of the denial.  Briefs in support or opposition to the appeal must be timely filed.   

The Department of Labor is closed.   Immigration labor applications such as PERMs, prevailing wage requests, applications for temporary labor certification and labor condition applications cannot be processed until they reopen.   
Immigration and Customs Enforcement “ICE” is partly open.  ICE apprehensions and deportations are currently in effect.  In Los Angeles particularly recently apprehended individuals in the process of ICE booking will be considered for the Immigration supervised released program if they meet certain criteria.  Given the unavailability of funds to transfer and house immigrants to a detention center, ICE is using their scarce resources to find alternative ways to deal with the recent apprehensions.  Customs and Border Patrol is also currently operating and all international borders remain open and secure. 

Federal courts are still open but that may not remain true.  Time deadlines for petitions for review, motions for stay and briefing schedules remain in effect.  It is also still possible to file for declaratory relief in U.S. District Court.

It is impossible to know when the budget will be passed and the government reopened.  However, for those whose hearings have been extended, it is wise to use the time to obtain additional documents and further strengthen their cases.  For those who are being processed through CIS or a Consulate, and for those with appeals, everything is proceeding as normal.  Be sure you meet your deadlines.