News & Events

To Shut Down or Not to Shut Down . . . . What is Going to Happen to My Immigration Case?

For the third time this year, a government shutdown is looming.  While the Trump Administration is lobbying for funding for a border wall, thousands of lawful immigrants are wondering, “what is going to happen to my case?”  The short answer is that, while no one really knows, the show will likely go on for most applicants. Here is a bit more detail.

While normally funding for the federal government is approved on an annual basis, we are now in an era of more short-term “continuing resolution” spending bills which keep the doors open and lights on in federal offices while placing political pressure on the Republicans and Democrats to push their agenda on certain key items for their constituents.  The “hot potato” this time is funding for President Trump’s desired border wall.  The current spending bill expires tonight at midnight if a new bill is not passed by Congress and signed by the President.

If a shutdown does occur (again!), then not all federal agencies come to a stop.  National security and other agencies providing vital functions for the safe operation of the U.S. will continue to work.  From an immigration standpoint, “vital functions” should include Customs and Border Protection agents stationed at airports and other ports of entry.  Travelers on visas, therefore, should see no disruption to their holiday travel.

So what about pending H-1b applications?  Well, the good news is that the USCIS is a fee-based agency.  Employers pay significant filing fees to sponsor employment-based immigration applications, like H-1b petitions, Immigrant Visa Petitions, L-1 applications, and so forth.  Because employers pay a fee for sponsoring most immigration petitions, the USCIS should keep their lights on and continue to work during a shutdown.

Likewise, the U.S. Department of State, which operates the U.S. consulates that issue visas across the globe, should continue to operate as well.  That is good news, particularly if you are planning a trip abroad during the holidays and had scheduled an appointment with a U.S. consulate for a visa interview during your trip.  You should have no issues, and should be able to obtain your new visa stamp and re-enter the States at the conclusion of your trip.

But what about immigration-related applications to the U.S. Department of Labor, like LCAs or PERM applications?  LCAs, or Labor Condition Applications, are pre-requisites for filing H-1b petitions to establish that sponsored H-1b applications will not have a negative impact on U.S. worker wages for similar positions in the area of intended employment. PERM, or Labor Certification, is the initial filing for most employment-sponsored permanent residency (green card) applications.  PERM follows a lengthy recruitment process meant to show no willing, able or qualified U.S. workers could be found for the sponsored position.  Neither of these applications requires a filing fee.  Fortunately, a short-term spending bill passed in September 2018 provides funding to the DOL through September 2019.  Therefore, these cases will go on.

How about physicians seeking J-1 waivers?  This gets a bit more tricky.  Many international physicians come to the U.S. to complete their graduate medical training using the J-1 visa, a great visa for training. The J-1, however, has a peculiar requirement that upon the completion of the fellowship or other program, the physician must return home for 2 years before being eligible for reentry to the States to begin practice through an H-1b visa.  Physicians wishing to bypass this requirement may do so through the Conrad 30 J-1 waiver program.  While the specifics of this program vary by state, the basic proposition of the Conrad 30 waiver is that the USCIS will forgive the 2-year home residency requirement in exchange for the physician and sponsoring employer’s agreement to provide direct patient care in a designated underserved area for 3 years.  In other words, if an international doctor agrees to help shore up the delivery of healthcare in an area with a shortage of physicians, the federal government will agree to let the doctor stay and practice in the U.S.

Unfortunately, the Conrad 30 program (along with certain other programs like EB-5 Regional Centers and Non-Minister Religious Workers) are set to expire unless legislation is passed by December 21 to extend those programs.  Until the Conrad 30 program is reauthorized, the Department of State and USCIS will have to hold off on granting J-1 waivers to physicians.  This is an unfortunate result for many communities that are in desperate need of healthcare providers.  Hopefully, however, it would only be a temporary delay.

And what about E-Verify-registered employers that are hiring new employees during a shutdown?  E-Verify is a voluntary immigration compliance program (although mandatory in certain states and for certain employers) that helps employers confirm the work authorization of new hires.  During a shutdown, employers will likely not be able to use E-Verify.  If that is the case, employers should still complete the I-9 employment verification process for all new hires.

Hopefully Congress and the President can come to terms and give the gift of predictability to their constituents this holiday season.  But until then, the show will hopefully go on!