What A Government Shutdown Would Mean For Immigration
by Foster LLP, on Immigration Updates
In the event the U.S. Senate fails to pass a continuing resolution to continue operating the government until a full budget agreement can be reached, the U.S. Federal Government is expected to “shutdown.” 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 State – Delay of Visas at Consular Posts
The U.S. Department of State interviews visa applicants and adjudicates visa applications abroad. It is likely that visa applications will be impacted by a shutdown, though essential U.S. Citizen services and higher level diplomatic functions would continue uninterrupted. All visa applications might be delayed, both immigrant and nonimmigrant, including B, L, H, O, E, F, and J.
Department of Labor – Suspension of Filing PERM and LCA applications
The U.S. Department of Labor plays a key role in the adjudication of Applications for Permanent Employment Certification (PERM) as well as Labor Condition Applications which are a prerequisite for filing certain nonimmigrant visa petitions, including H-1B and E-3 nonimmigrant visa petitions. The DOL website portals for filing PERM Applications for Permanent Employment Certification, Applications for Prevailing Wage Determinations, and Labor Condition Applications may no longer be functional if the government shuts down. This would impact the timing of future H-1B, H-1B1 (Chilean and Singaporean) and E-3 filings as well as PERM application filings (usually the first step in the permanent residency process).
U.S. Citizenship & Immigration Services (USCIS) – Most USCIS Petitions will continue to be processed, except EB-5
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 CIS operations, it is expected that most CIS adjudication activities should continue unabated, though perhaps with delays.
Because H-1B and E-3 petitions require a Labor Condition Application filing and certification by U.S. Department of Labor before a petition can be filed, the U.S. DOL shutdown of LCA adjudications would cause a ripple effect in delaying petitioners’ ability to file these petitions.
Additionally, individuals with H-1B and E-3 approval notices already in hand, but for which visa application abroad is required before returning to the United States, should be advised of the likely delay in H-1B and E-3 reentry due to delays or unavailability of visa application appointments abroad.
Finally, because the EB-5 Regional Center program would be suspended during a government shutdown, investors would not be able to file petitions for investor status. Similarly, it is also possible that Conrad 30 J-1 waivers for physicians and special immigrant petitions might be suspended during the shutdown.
Immigration & Customs Enforcement (ICE) – ICE Enforcement Operations Continue; suspension of I-9 E-Verify program
ICE is charged with interior enforcement of U.S. immigration laws. ICE is expected to continue operations, though 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.
U.S. 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. CBP officers will continue enforcement activities as well as the inspection of foreign nationals entering the United States through the ports of entry.