On January 22th, 2018, the U.S. government reopened after shutting down on January 20th, due to funding issues. Congress passed a spending bill that will keep the government funded until February 8th, 2018. Currently, Congress is in negotiations to reach a long term budget that will keep the federal government funded until 2020. One of the issues that is currently being discussed as part of these negotiations concern legislation involving the future of Deferred Action for Childhood Arrivals (DACA). This alert will discuss recent development concerning DACA, and in the event there is another shutdown in February, this alert will discuss how a potential future government closure will affect immigration-related services.
On January 20, 2018, the U.S. government shut down after the Senate was unable to pass a funding bill. This led to the closure of all non-essential and non-fee-based functions. On January 22, 2018, the Senate Democrats and Republicans re-entered into negotiations and came to an agreement that a vote should be held to temporarily reopen the government. In that afternoon, a vote was held and a funding bill was passed that would keep the government functioning until February 8, 2018. This vote gives all parties time to negotiate a new funding bill while the government continues its operations.
Recently, a federal district court judge ordered the Department of Homeland Security on January 9, 2018 to partially resume the DACA program. (see previous alert) Since then, the United States Citizenship and Immigration Services (USCIS) has issued guidance on renewal of DACA-based Employment Authorization Document (EAD). USCIS will mostly follow the same procedures to process DACA-based EAD renewal applications that were in place before DACA was rescinded. Only individuals who were previously granted DACA may request renewal of their DACA-based EAD. USCIS will not accept requests from individuals who have never been granted deferred action under DACA. USCIS will also not accept or approve advance parole requests from DACA recipients. (please see here for additional details on USCIS guidance)
A group of bipartisan Senators and President Trump have both expressed interest in finding a legislative solution that would provide DACA-recipients protection from removal by the Department of Homeland Security (DHS) and offer them lawful permanent residency with a pathway to citizenship currently not available under DACA. However, there are significant differences that need to be resolved before an agreement can be made. Under President Trump’s proposal, it would provide legal status along with a 10 to 12 year path to citizenship to 1.8 million DACA recipients and DACA eligible first-time registrants. In exchange, the proposal calls for creation of a $25 billion trust fund for border security improvements including a border wall system, restriction of family-based immigration to only the spouse and minor children of citizens and lawful permanent residents, and elimination of the diversity visa lottery. In comparison, the Senate bipartisan Graham-Durbin proposal would also provide legal status and a path to citizenship for DACA recipients and DACA eligible first-time registrants. In contrast with President Trump’s proposal, the Graham-Durbin proposal would add only $2.7 billion in border security spending, continue to allow citizens to sponsor their parents, siblings and unmarried adult children under family-based immigration, and grant renewable work authorization to parents of DACA recipients and DACA eligible first-time registrants.
There are still significant uncertainties with regards to the future of DACA, and PwC Law will continue to monitor and provide additional information as they become available. For current DACA recipients, please contact a member of our team to discuss how the recent USCIS guidance may impact you.
In the event that a new budget is not agreed upon by February 8th, the U.S. government will shutdown again. From an immigration perspective, there are several government agencies and departments that will be impacted should this occur.
It is anticipated that the USCIS will continue operations since it is almost exclusively a fee-based agency. Therefore, USCIS should continue to receive and process work permit petitions, such as H-1Bs and L-1s. United States Customs and Border Protection (CBP) will also remain open since it is considered an essential agency with jurisdiction over the entry through the US border. As such, all ports of entry will remain open. The United States Immigration and Customs Enforcement (ICE) will also continue to enforce immigration laws during any future shutdown.
E-Verify services, which allows employers to determine the eligibility of their employees to work in the US, are likely to become unavailable. Employers will still be expected to complete Form I-9 no later than the third business day after an employee starts work for pay, and comply with all other Form I-9 requirements.
Department of Labor (DOL) services, which is not an exclusively fee-based department, will will be affected. Specifically, the DOL will not allow for the filing and processing of all PERM labor certifications and visa categories that have a Labor Condition Application (LCA) component, including H-1Bs, H1B1s, and E-3 petitions.
The Department of State (DOS) will continue to operate the overseas consulates in a limited capacity. Passport operations will be unaffected however, the consulates may stop issuing visas, unless they are diplomatic visas, or visas required to enter the U.S. for emergent reasons.
The Social Security Administration (SSA) will limit its activities due to the government shutdown. From an immigration perspective, the SSA will not issue new or replacement social security cards.
In the event that another shutdown occurs in February, our office will continue to monitor and provide additional information.
For further details regarding Government shutdown or any other immigration matters, please contact a member of our team at PwC Law LLP.