What A Government Shutdown Would Mean for Immigration
If Congress is unable to agree on the budget by September 30 at 11:59 pm Eastern Standard Time, the U.S. federal government is expected to “shut down” on October 1, 2023. Various government departments and agencies are involved in handling U.S. immigration matters, and each would be impacted to a degree by a shutdown. While operations and services essential to national security would continue, non-essential operations would be impacted.
Department of Labor (DOL) – Suspension of Filing LCA Applications for H-1Bs and PERM Labor Certification Applications
The DOL plays a key role in the adjudication of Labor Condition Applications (LCAs), which are required for filing certain nonimmigrant visa petitions, including H-1B and E-3 nonimmigrant visa petitions. If the government shuts down, the DOL’s FLAG system for filing the LCAs and printing certified LCAs may no longer be functional. This would impact the timing of future H-1B, H-1B1 (Chilean and Singaporean) and E-3 filings as well as PERM labor certification application filings (often the first step in the permanent residency process). If an employer needs to file an H-1B petition soon and has not already posted the Notice of Filing (NOF) for the required LCA, employers should post the NOF now so that the LCA can be submitted before a possible government shutdown. It may still be possible to obtain the certified LCA from the DOL so that an H-1B petition may be filed even if the government does shut down.
The DOL also processes requests for Prevailing Wage Determinations, which are needed for PERM Labor Certification Applications (PERMs). If the government shuts down, the DOL’s portal for these applications will also not be functional. The DOL is aware that employers face deadlines for filing and is reportedly considering issuing flexibility guidelines.
Department of State – Delay of Visas at Consular Posts
The U.S. Department of State interviews visa applicants and adjudicates visa applications abroad. While these operations are funded by fees, consular applications may be impacted by a shutdown if there are insufficient fees. All visa applications might be delayed, both immigrant and nonimmigrant, including B, L, H, O, E, F, and J. However, diplomatic visas and visas essential to respond to life-or-death emergencies would continue uninterrupted.
U.S. Citizenship & Immigration Services (USCIS) – Most USCIS Petitions will Continue To Be Processed
USCIS adjudication functions are funded by the filing fees associated with petitions and applications for immigration benefits. Due to the independent source of operational funds for USCIS operations, it is expected that most USCIS adjudication activities should continue, although with possible additional delays.
Unlike the most recent government shutdown that ended in January 2019, a shutdown on September 30th should not impact the EB-5 Regional Center program because it has already been authorized through September 30, 2027.
It is possible, however, that Conrad 30 J-1 waivers for physicians might be suspended during the shutdown. Special immigrant petitions for religious workers will sunset on September 30, 2023, unless a continuing resolution or appropriations package is signed into law before September 30.
USCIS has said that eligible E-Verify employers may continue to use the alternative remote inspection process available with the new form I-9. As a reminder, the latest version of the Form I-9, 08/21/2023 edition, must be used by employers beginning November 1, 2023.
Customs & Border Protection (CBP) – Border and Airport Inspections Continue
CBP is charged with enforcement of U.S. immigration and customs laws along the U.S. borders and at U.S. airports and seaports of entry. Because CBP personnel are considered essential, CBP officers will continue their enforcement activities as well as the inspection of foreign nationals entering the United States through the ports of entry.
Immigration & Customs Enforcement (ICE) – ICE Enforcement Operations Continue; Suspension of E-Verify Program
ICE is charged with interior enforcement of U.S. immigration laws and removal/deportation. ICE is expected to continue operations, but lower-priority activities and new investigations or enforcement actions may be delayed.
The E-Verify program, administered by ICE, may be impacted by a government shutdown, with support services and program functionality potentially unavailable. As a reminder, the Form I-9 must still be completed timely and properly even if an employer is enrolled in E-Verify and E-Verify is unavailable.
Executive Office for Immigration Review (EOIR) – Immigration Court Proceedings for Those Detained Continue
Immigration court cases for those individuals who are detained should continue. Courts with dockets for only non-detained individuals will not be open and will not accept filings.
Foster will provide additional updates as this situation develops via our firm’s website at www.fosterglobal.com.