The potential government shutdown Sunday would impact a host of federal government programs and agencies, and immigration is no exception. Here’s a look at the potential impact of a shutdown on immigration-related programs and what employers and foreign workers can expect.
USCIS
U.S. Citizenship and Immigration Services (“USCIS”) is a fee-based agency — as opposed to having its funding appropriated by Congress — and, therefore, many of its operations will continue as normal. USCIS should continue to accept, process and adjudicate petitions and applications for immigration benefits during a government shutdown, including those that are already pending and any new cases.
Department of State
Visa operations at U.S. embassies and consulates overseas are also fee-based, and therefore may continue. But visa operations are typically part of the larger embassy or consulate, including facilities, security, information technology, so any change in these operations could impact visa operations as well. These impacts are likely to be specific to a particular embassy or consulate, and we recommend that visa applicants monitor the situation at the local post where they intend to apply.
Department of Labor
The Department of Labor (“DOL”) has confirmed that, in the event of a government shutdown, it will disable its Foreign Labor Application Gateway (“FLAG”) system, which is used to submit and receive Labor Condition Applications (“LCA”) for H-1B, E-3 and H-1B1 nonimmigrant visas; Prevailing Wage Determinations; and Permanent Labor Certifications (“PERM”).
Because a certified LCA is required for H-1B, E-3 and H-1B1 visa categories, employers will be unable to file new cases or extensions until the government shutdown ends and the DOL’s FLAG operations resume. In the past, USCIS has accepted some late filings when employers demonstrate the government shutdown caused the delay.
Prevailing Wage Determinations and PERM applications — which are used in many employer-sponsored green card cases — have already been plagued by slow DOL processing times. In the event of a government shutdown, employers and foreign workers can expect further delays.
E-Verify
E-Verify has historically been unavailable during government shutdowns. If E-Verify is unavailable, employers should still complete a Form I-9 as normal. Employers should then create E-Verify cases when the system is restored. Employers will not be penalized for these delays.
USCIS has confirmed that employers may continue to use the alternative remote document examination procedure for E-Verify employers even if the system is temporarily unavailable.
CBP
U.S. Customs and Border Protection (“CBP”) inspections are considered essential and will continue. Ports of entry will remain open but delays are possible and some operations may be impacted. For instance, foreign nationals who seek to apply for an immigration benefit at a port of entry —such as Canadian citizens seeking initial entry in or extensions of TN or L-1 status — should verify the operating status of the port of entry at which they intend to apply.
Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.
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