“You’re shutting down the immigration court over the issue of immigration,” said Judge Ashley Tabaddor, president of the National Association of Immigration Judges, the judges union.  Oh the irony of a government shutdown…  As the shutdown continues (today is Day 21), I am getting more and more questions from clients, friends, and other professionals regarding who is and who isn’t working, because—let’s face it—it’s all very confusing!  This month, instead of my usual news article, I present you all with Ely’s guide to immigration during the shutdown: who’s working, who’s not, and who cares anyways?

USCIS Cases: Can you file an affirmative residency application or a naturalization application? YES. USCIS is a fee-based agency, which means they work tanks to the filing fees paid along with applications submitted.  As such, USCIS will continue to process applications and petitions for immigration benefits during the shutdown. Everyone must show-up to their fingerprint appointments and interviews.  That being said, certain limited national services are suspended, so expect delays for special programs.

TSA: Are travelers still being screened at the airport? YES. The Transportation Security Administration is part of the Department of Homeland Security. Many of its workers are considered “essential,” so many are working without pay — though a greater number than usual have been calling in sick as a result of the “no pay” situation.  If there’s an increase in call-outs, it could lead to longer lines and increased wait times for passengers.  Air traffic controllers are similarly working without pay now. In addition, planes are not being inspected, and pilot training is not being certified because the FAA safety inspectors aren’t working.

EOIR Cases: If you have an immigration court hearing, is that still happening?  NO. All hearings for non-detained cases are canceled and will be rescheduled when operations resume.  Filing things in court for non-detained cases has similarly stopped. There will be some court personnel allow processing of cases for detained immigrants to continue, and the detainee hearings are still going forward. Simplified answer: if you are detained, your court hearing goes on as planned; if you are not detained in a detention facility, then your court will be rescheduled regardless of whether it was a simple hearing (“Master”) or a final hearing/trial (“Individual”).  Similarly, Judges are not taking action on pending motions.

The Coast Guard: Are they still operating along the coastline to stop drug smugglers and for search and rescue missions? FOR NOW. While the other branches of the military are part of the Defense Department, the Coast Guard falls under Homeland Security. After some maneuvering, the government found a way to pay its military members on Dec. 31. The nearly 42,000 active duty members of the Coast Guard are still working, as they are considered essential personnel, but it’s not clear whether they will get a paycheck on Jan. 15 when the money runs out.

Asylum Cases: If you have a pending asylum case, will it continue to be processed and will asylum interviews proceed as scheduled? YES. The asylum unit will continue working throughout the shutdown; however, since there are no filing fees associated with asylum applications, keep an eye out for delays if the shutdown lasts too long, especially once reserve money runs out!

ICE/ERO: If you are under an order of Supervision (OSup) or have an appointment with ICE, is that still happening? YES. ICE detention, and enforcement operations will continue, and the ICE Community and Detainee Helpline will continue to operate.

Department of State (DOS):  Will visa cases for people abroad also continue to move forward? YES. DOS will continue to process visa applications, but it is unclear how long that will continue as we expect slowdowns at the National Visa Center in New Hampshire which processes the paperwork prior to the case being scheduled for interview abroad.

Customs and Border Protection (CBP): Are they still protecting the border and ports of entry? YES.  CBP will continue working on the borders and all our ports of entry; this would include the processing of TN and L-1 visas at ports of entry.

Bureau of Consular Affairs: Can I apply for a US passport during the shutdown? YES. This is also a fee-based agency; therefore, the Passport Office should continue to operate normally during a shutdown. However, some those passport offices that are in federal buildings, which themselves may have to shut down, restricting access to those passport offices. Call ahead before you visit your local office!

On a personal note, to me the biggest irony is that in continuing the government shutdown, Trump is breaking several promises on immigration! The administration is failing to meet guarantees on the immigration court backlog and deportations. About 75 percent of about 400 immigration judges nationwide have been furloughed without pay, and the shutdown has all but ceased the “deportation machine” that has been the focus of Trump’s predecay. As Judge Dana Leigh Marks, former president of the National Association of Immigration Judges, said “everyone is entitled to their day in court, and that it should occur in a reasonably prompt amount of time.  But the reason that there are delays in our system is simply because we have been underfunded and ignored for so long. The system does work, when it receives the proper funding. And it’s not a loophole. It is the appropriate due process that is what American justice provides to any individual who has their life and liberty at stake before our courts.”



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