IMMIGRATION ISSUES: Planning for a Shutdown in Immigration-Related Services

Contributed by Amber L. Blasingame, Associate Attorney

Once again, we are looking into the abyss that we call “government shutdown” with fear and apprehension. If Congress fails to agree on funding for the federal government or pass yet another continuing resolution on the many appropriations bills on the table, the federal government may shutdown on October 1, 2013. So, at midnight on September 30, 2013, we will know whether we can visit the Rocky Mountain National Park next weekend, if you can get past the washed out mountain roads, or have to postpone a visit to the White House during your 8^th Grade field trip to Washington, DC.

The most recent government shutdowns occurred from November 13-19, 1995, and December 15, 1995, to January 6, 1996. During the 5 day shutdown in 1995, the government furloughed approximately 800,000 employees. The 21 day shutdown between December 1995, and January 1996, is deemed the longest federal government shutdown.

Not all of the federal government would shutdown during a government “furlough.” The Office of Management and Budget (OMB) defines who works during a mandated federal furlough and who stays home. Prior to 1995, employees were divided into “essential” and “non-essential” categories. To not hurt anyone’s feelings, after 1995, the category titles were changed to “excepted” and “non-excepted.” Although, the Department of Homeland Security (DHS), for variety, labels the categories “exempt” and “non-exempt” and refers to the shutdown as the “emergency furlough” or “federal funding hiatus” in a 2011 contingency plan. Essential or excepted services include services necessary for national security including military and border patrol, public safety “to the extent that they protect life and property,” including air traffic control and emergency medical care, or “programs written into permanent law” that would not rely on appropriations for funding, such as Social Security services. Also categorized under “excepted” are independently funded services, such as the United States Postal Service and the Federal Reserve.

The federal government requires that all agencies prepare, maintain, and update a contingency plan in the event of a government shutdown. The last contingency plans were prepared or updated in 2011, during the last threat of a government shutdown.

The Department of State (DOS), in 1995, reported delays in processing 20,000 to 30,000 visa applications for foreign nationals. In addition, 200,000 applications from US citizens for passports were shelved during the 1995 and 1996 shutdowns. The DOS 2011 contingency plan looks much the same as the plan executed in 1995 and 1996. Visa and passport functions, for the most part are non-excepted. Emergency passport services will be provided, but “passport offices will be closed for the acceptance of new applications” and processing of passports may be limited to “expedited applications already in the system.” The DOS anticipates “a significantly higher percentage of excepted positions abroad than in Washington,” to maintain diplomatic functions, global presence, foreign relations, international agency support, national security, and “[b]ecause many countries’ labor laws require that our local employees and contractors be paid regardless of attendance.” DOS excepted services, among other essential services, include American citizens’ services, refugee assistance, and emergency visa services (such as “those for life/death or medical emergencies, humanitarian cases involving minor children, and diplomatic travel”). Staffing at foreign posts may also be determined by international events and the nature of diplomatic relationships with host countries at the time of the shutdown.

DHS did not exist as a cohesive entity in 1995/96, but now oversees the majority of administrative, enforcement, and protective services related to immigration. Law enforcement tops the list of “exempt” functions under DHS management, including “illegal alien interdiction” qualifying under “the exception of protection of human life or property.” The United States Citizenship and Immigration Service (USCIS) would also continue functioning during a “federal funding hiatus.” According to the DHS 2011 contingency plan, USCIS performs “Fee for service activities” which would not be affected by annual appropriation lapses. DHS lists, among the “non-exempt” services in the 2011 contingency plan as follows: “auditing,” “regulatory, legislative, and intergovernmental affairs,” and “training and development.”

The Department of Justice (DOJ), which oversees the Executive Office of Immigration Review (EOIR), including the immigration courts and the Board of Immigration Appeals (BIA), 2011 contingency plan reduces personnel by 20% during a shutdown. All law enforcement services and legislative support remain on duty. While litigation services, including the courts, are divided between criminal and civil matters. All criminal litigation is labeled as “excepted” and is scheduled to “continue without interruption as an activity essential to the safety of human life and the protection of property.” Civil litigation, however, which includes immigration removal proceedings, is “curtailed or postponed to the extent” possible without compromising any “significant degree” of safety for human life or the protection of property. The decision to curtail or postpone cases rests with the courts, but supervisors are reminded to limit staff to only what is essential to comply with any given court order and “to protect life and property.”

The Department of Labor Foreign Labor Certification office oversees labor certifications, labor condition applications, and prevailing wages, among several immigration related support services. The Employment and Training Administration (ETA) manages the FLC. The DOL 2011 contingency plan reduces ETA personnel as much as 97% in anticipation of a government shutdown. The reduced staff does not appear to include FLC functions, as the only ETA functions listed on the plan include “maintaining support for Job Corps Centers training and housing [sic] approximately 44,000 students,” because the function is “necessary for the safety of life and [sic] Other funding source (by necessary implication).”

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