In this edition, find the latest news on the effects of a potential government shutdown, the October Visa Bulletin, USCIS’ DACA update, and more!
Potential Government Shutdown Effect on Immigration Agencies
There has been much speculation in the news that the federal government is headed for a shutdown starting October 1, 2023, if Democrats and Republicans fail to agree on annual spending or reach a continuing resolution to temporarily fund the federal government.
When this has happened in the past, the contingency plans for each federal agency have varied. The White House keeps an updated page on its website with each agency’s plan for a federal government shutdown.
Here is an overview of the immigration agencies:
- U.S. Citizenship & Immigration Services (USCIS). USCIS is funded by user fees and does not depend on federal funds for its operations. Processing of all applications and petitions is expected to continue. The only exception is if a petition or application requires the certification of another affected federal agency, such as an H-1B petition that requires certification by the Department of Labor (DOL).
- Department of Labor (DOL). The Office of Foreign Labor Certifications (OFLC) oversees most immigration processes and is part of the DOL, which has typically been closed during government shutdowns. DOL will likely not accept or process any Labor Condition Applications (LCAs), Prevailing Wage Determinations, or Applications for Permanent Employment Certification (PERM).
Additionally, as mentioned above, the operational status of DOL impacts USCIS petitions that require a certified LCA (H-1B, H-1B1, and E-3 visa petitions). Historically, USCIS would temporarily allow an exemption to the LCA requirement for status maintenance filings. Similarly, the DOL’s status may impact the timing requirements of PERM applications. In the past, DOL has extended any deadlines that fell during a government shutdown.
- Department of State (DOS). Consular operations and visa issuance may or may not be operational during a shutdown. DOS maintains a small reserve of funds for continued operations. However, the Department of State has reduced or halted visa issuance during prior shutdowns. Employees with international travel plans that would require them to obtain a new visa stamp while abroad should monitor the situation closely and may need to cancel their travel plans or risk being unable to return to the United States.
- Customs and Border Protection (CBP). Borders will remain open and CBP will be operational, so individuals entering with a valid visa should not encounter any issues with ports of entry. However, individuals who plan to apply for an immigration benefit at a port-of-entry or a pre-clearance facility (such as TNs and L-1s for Canadian nationals) will need to check the operational status of the location at which they intend to apply for the latest information.
- E-Verify. E-Verify is unavailable during a government shutdown. As a result, E-Verify employers will not be able to verify employment eligibility or take any other action in E-Verify. The three-day rule for E-Verify cases will be suspended, and the time during which employees may resolve Tentative Nonconfirmations will be extended. Employers are not permitted to take any adverse action against an employee whose query is in an extended interim case status due to the government shutdown. The government will release additional information on how to address situations that cannot adhere to traditional E-Verify deadlines if or when a shutdown occurs. This disruption does not affect I-9 obligations.
It is important to check each agency’s contingency plan as the situation unfolds because as mentioned, shutdown operations have varied with each presidential administration.
- Agency Contingency Plans, The White House, whitehouse.gov
October 2023 Visa Bulletin is Published
On September 15, 2023, the Department of State released the October 2023 Visa Bulletin, indicating which green card applications are eligible to move forward based on their initial filing date. For employment-based filings, USCIS has directed the public to use “Chart B,” the Dates for Filing chart in the October Visa Bulletin.
The Visa Bulletin affects those born in countries where there are more green card applications filed than green cards available for the fiscal year. Those born in India and China are subject to backlogs and have to wait for their priority date to become current so that they may file an Adjustment of Status, the final stage in the green card application.
The EB-1 category is “current” for all countries except for India and China. Indian nationals with priority dates of July 1, 2019, and earlier are eligible to move forward. Chinese nationals with priority dates of August 1, 2022, can move forward with their applications.
EB-2 Indian nationals with priority dates of May 15, 2012, and EB-2 Chinese nationals with priority dates of January 1, 2020, can move forward.
In the EB-3 category, Indian nationals with priority dates of August 1, 2012, and Chinese nationals with priority dates of September 1, 2020, are eligible to file their Adjustment of Status applications for their green cards.
USCIS Issues Update on DACA Decision
U.S. Citizenship and Immigration Services (USCIS) issued an update about the partial stay of the recent Deferred Action for Childhood Arrivals (DACA) decision by a Texas federal judge. On September 13, 2023, District Court Judge Andrew Hanen declared the Biden administration’s revised version of the DACA program illegal. However, Judge Hanen also kept in place a partial stay for DACA recipients who received their status before July 16, 2021.
USCIS states that current grants of DACA and associated employment authorization documents (EADs) will remain valid until they expire unless otherwise terminated. USCIS will continue to accept and process renewal requests. As for initial DACA requests, USCIS will continue to accept these, but the agency will not process the applications.
Individuals who currently have valid DACA and related EADs do not have to submit a request for DACA or employment authorization until it is time for renewal.
Proposed DHS Rule Seeks to Modernize H-2 Program
On September 18, 2023, the U.S. Department of Homeland Security (DHS) announced a proposed rule to strengthen protections for temporary workers under the H-2A temporary agricultural and H-2B temporary nonagricultural worker programs. The proposed rule is intended to improve the H-2 programs by providing more flexibility and protections for the workers, as well as improving efficiency.
The H-2 visa program allows U.S. employers to hire foreign nationals to fill temporary jobs when there are not enough U.S. workers willing, able, and qualified to do the temporary (often seasonal) work. The employer must file a petition accompanied by a certification from the Department of Labor (DOL) that states why there are no qualified U.S. workers and demonstrate how a foreign worker’s employment will not adversely affect the wages and working conditions of U.S. workers in similar roles.
There are a limited number of visas available to participate in the H-2 program and, under the proposed rules, employers who violate the requirements may become ineligible. The proposed rule also clarifies restrictions on employer-imposed fees and seeks to protect workers from incurring debts and abuse. DHS also proposes extended grace periods to seek other employment, depart the United States, or change visa status. There would also be a major benefit to employers, as DHS proposes to make H-2 portability permanent, allowing employers to hire workers already lawfully in the United States. The 60-day public comment period starts following the publication of the proposed rule in the Federal Register.
- News Release, U.S. Department of Homeland Security (Sept. 18, 2023)
- Proposed Rule, Federal Register (Sept. 20, 2023)
Certain TPS Beneficiaries Are Now Eligible for 540-day Extension of Work Authorization
On September 8, 2023, USCIS announced that individuals who have TPS (or a pending application) are now eligible to extend their Employment Authorization Document (EAD) for up to 540 days past their EAD card expiration date. For I-9 purposes, the TPS beneficiary can present their expired EAD card and their I-765 Receipt Notice showing that they timely filed an EAD renewal application before October 26, 2023.
TPS (“Temporary Protected Status”) is a designation that allows nationals from specific countries to stay in the United States for up to 18 months while their home country has a temporary emergency condition.
- USCIS Clarifies Certain TPS Beneficiaries Eligible for 540 Day Extension, last updated September 8, 2023