The Government Shutdown and Immigration
By: Danielle Beach-Oswald
The current U.S. government shutdown is having adverse impacts on the immigration process for both immigrants in the U.S. and U.S. citizens. A brief discussion of how the immigration process is being impacted is detailed below.
Due to the fact that the fact that the Executive Office of Immigration Review (EOIR) is part of the Department of Justice and its annual budget is dependent on federal funds, EOIR is closed during the shutdown. This means that the majority of immigration courts across the country are closed. Those that remain open, or partially open, are only hearing detained cases. For example, the Arlington Immigration Court, where a majority of DC and Virginia immigration cases are heard, is partially closed. In the Arlington Court, only detained cases are being heard.
Immigration courts already have an extreme backlog, often times scheduling individual hearings for one to two years in the future. The current shutdown is further delaying thousands of cases that were scheduled to be heard during this time period. There has yet to be a discussion on how these cases will be rescheduled and if they will get priority in hearing dates. Many immigration cases, especially asylum cases, are time sensitive and require that asylum applications are filed within a one-year timeline. The current closure of immigration courts can have a potentially devastating effect on applicant’s ability to file within the one year time-frame.
The United States Citizen and Immigration Services (USCIS) is part of the Department of Homeland Security and is one of the only agencies that remains almost entirely staffed and open during the shutdown. USCIS is able to remain open because it derives 95% of its annual budget from fees that applicants pay with their petitions. 97% of USCIS employees will remain working during the shutdown and should be able to keep pace with the volume of cases that are filed. One potential shutdown complication is the fact that USCIS often depends on other federal agencies, such as Immigration, Customs and Enforcement (ICE) and Customs and Border Protection and may not be able to collaborate with them during this period, thus causing delays in some cases.
E-Verify is an Internet-based system that allows businesses to determine the eligibility of their employees to work in the United States, is a federally funded component of USCIS that is unavailable during the shutdown. Due to the fact that E-Verify is unavailable, employers are unable to enroll any company in E-Verify, verify employment eligibility, view or take action on any case, edit user information, run reports, view ‘essential records’, or terminate an account. In addition, employees are unable to resolve Tentative Nonconfirmations and employers may not take any adverse actions against an employee because of an E-Verify interim case status. The lack of a functioning E-Verify seriously impacts the operations and hiring processes for a substantial number of businesses throughout the U.S.
The shutdown is causing a serious level of confusion throughout the general population, specifically regarding immigration matters. Due to the fact that the courts are mainly closed but that USCIS is still functioning, many individuals are unsure how to proceed. Individuals are unsure if they have to go to their court hearings, biometrics appointments, naturalization interviews etc. and many are concerned about meeting specific deadlines. Those without legal counsel are relying on personal research and word of mouth for advice, which is often unreliable. A missed interview or biometrics appointment can have deleterious effects on one’s immigration process.
Finally, the government shutdown is seriously halting the discussion on immigration reform. Substantial progress had been made in the Spring and Summer in pressuring Congress to discuss and pass legislation on comprehensive immigration reform. Unfortunately, the current situation is taking attention and pressure away from comprehensive immigration reform. A loss in momentum can seriously jeopardize the movement to achieve comprehensive reform.
Overall, the government shutdown has various negative impacts on the immigration system, particularly for those that are in non-detained court proceedings. Cancellation of court hearings during the shutdown can result in delays of months for individuals to be rescheduled for another court date. October is when numbers are issued for visas. Cancellation cases that have been waiting to be granted from prior hearings may now have to wait an additional year if the visa number runs out. Additionally, some cases being processed by USCIS may be delayed due to lack of USCIS’s ability to collaborate with other federal agencies. E-Verify is shut down which will negatively impact the operations of U.S. businesses. A general state of confusion and lack of knowledge is impacting many individuals who are unsure how to proceed during this time and may adversely affect their case. Finally, the current shutdown is negatively impacting the discussion and movement for comprehensive immigration reform. A prolonged shutdown will only aggravate the situation.