Government Shutdowns and Immigration Processes: What to Expect

Jackson Walker

Jackson Walker

If Congress does not pass appropriations legislation or a stopgap spending bill by September 30, 2023, the federal government will experience a shutdown on October 1, 2023. A federal government shutdown will disrupt certain U.S. immigration processes and visa programs, but not all of them. Immigration agencies that rely on appropriations from the federal government will shut down, while fee-funded agencies will continue to operate. Below, we provide an overview of how immigration-related agencies will likely be impacted by the government shutdown.

U.S. Department of Labor (DOL)

DOL immigration functions would be likely be suspended as non-essential functions. The DOL’s Office of Foreign Labor Certification (OFLC) would stop accepting and processing immigration‑related applications, including PERM applications, labor condition applications (LCAs), applications for prevailing wage determinations, and temporary employment certifications. The OFLC would disable its FLAG system, preventing users from submitting applications or accessing previously adjudicated applications. It is likely the OFLC will issue guidance to address flexibilities for employers with filing deadlines.

Additionally, DOL/OFLC personnel will not be available to respond to inquiries.

U.S. Citizenship and Immigration Services (USCIS)

The majority of USCIS funding is derived from filing fees submitted with applications and petitions seeking immigration or naturalization benefits. During a shutdown, USCIS would continue to handle applications and petitions for nonimmigrant visas and immigration benefits, with some potential processing delays. However, USCIS petitions that require action by the Department of Labor (DOL) would be directly impacted. Certain nonimmigrant work visas, such as H-1B, H-1B1, and E‑3, require a DOL‑certified Labor Condition Application (LCA). Employment-based immigrant petitions that require a DOL-certified PERM would also be impacted.

USCIS programs that rely on appropriated funds, such as E-Verify, Conrad 30 J-1 doctors, and non-minister religious workers, would likely be temporarily suspended. Appointments at local USCIS offices and Application Support Centers should remain unaffected by the shutdown.

U.S. Department of State (DOS)

The State Department would continue processing visa and U.S. citizenship document functions, as long as filing fees remain available to fund consular operations. However, consular availability and processing may be impacted if they are located in federal buildings that are closed due to the shutdown.

U.S. Customs and Border Protection (CBP)

CBP’s inspection and law enforcement personnel are considered “essential.”  CBP would continue to process immigration applications at the border and ports of entry would continue to operate. However, foreign nationals could experience delays in the processing of applications for work visa classifications (e.g., TN, H-1B, L-1), particularly at Canadian border posts.

U.S. Immigration and Customs Enforcement (ICE)

ICE would continue its enforcement and removal operations.

Executive Office for Immigration Review (EOIR)

During a congressional appropriations lapse, immigration court cases on the detained docket will move forward as scheduled. However, cases on the non-detained docket will be rescheduled for a later date once funding is reinstated. Courts that primarily handle detained cases will accept all filings, but will prioritize those related to detained dockets.

However, courts that exclusively handle non-detained cases will remain closed and will not be accepting any new filings. While the Executive Office for Immigration Review (EOIR) has not provided specific guidance regarding credible fear reviews or cases within the Family Expedited Removal Management (FERM) program, it is likely that these cases will be considered essential and continue to be processed during a government shutdown.

For more information and DHS guidance, visit “Practice Alert: What Happens If the Government Shuts Down” on the American Immigration Lawyers Association website.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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