In anticipation of a possible 2023 government shutdown this weekend, many employers are wondering how a shuttering of U.S. government agencies for budgetary reasons could impact or delay their U.S. immigration processing, exclusively handled by federal agencies.
The following is an overview of current guidance issued by immigration-related agencies, along with notes on how these agencies have treated prior shutdown periods.
Department of Labor (DOL)
The DOL’s Office of Foreign Labor Certification (OFLC) has indicated that, if the federal government shuts down, OFLC would need to disable the Foreign Labor Application Gateway (FLAG) system, which is the primary case management system used to process labor certifications and wage determinations to support new visas.1 This means that the DOL would immediately stop processing Labor Condition Applications (LCAs), Prevailing Wage Determinations, and PERM Labor Certifications. Critically, this could prevent employers from making needed USCIS filings. If a shutdown occurs, we therefore expect DOL will issue further guidance regarding flexibilities for employers with respect to the deadlines for filing PERM Labor Certifications.
Citizenship and Immigration Services (USCIS)
USCIS administers the U.S. immigration system. USCIS is a “fee-funded” agency, which means that applicants pay their own fees for USCIS to adjudicate their applications and USCIS does not receive federal appropriations to complete its work. Thus, there should be no interruptions or impact to standard USCIS filings made through USCIS for nonimmigrant or immigrant visas.
However, if the DOL stops processing LCAs, which are underlying certifications required for many types of nonimmigrant visas (H-1B, E-3, among others), employers could be prevented from or delayed in making the actual USCIS filings.
Based on its treatment of the January 2018 government shutdown, certain programs within USCIS that receive appropriated funds (E-Verify, Conrad 30 J-1 doctors, and non-minister religious workers) could be suspended or impacted by a shutdown.2
In the past, USCIS has, in some cases, exercised discretion to approve late-filed Form I-129 filings where the primary reason for the delay in filing was the government shutdown. However, we strongly caution clients from relying on this guidance alone and recommend contacting counsel in the event of a specific issue (such as impending visa expiration date for an employee) to discuss needed case strategy.
In the event of a government shutdown, the E-Verify system will be completely unavailable. This means employers will not be able to access their E-Verify accounts to create an E-Verify case, run reports, enroll in E-Verify, or view or act on any case. Employees similarly will be unable to resolve Tentative Non-Confirmations (TNCs).
E-Verify Customer Support and related services would also be closed. Thus, email and telephone support will be unavailable, and individuals will be unable to access myE-Verify. During the shutdown, the “three-day rule” for creating E-Verify cases would be suspended for cases affected by the unavailability of E-Verify. The time period during which employees may resolve TNCs should be extended. The number of days E-Verify is unavailable should not count toward the days employees have to begin the process of resolving their TNCs.
As with prior shutdowns, we expect that USCIS will provide additional guidance regarding the “three-day rule” and time to resolve TNC deadlines once operations resume. Until then, however, employers are reminded that the partial shutdown does not affect the Form I-9, Employment Eligibility Verification requirements. Employers must still complete Form I-9 no later than the third business day after the employee’s first day of employment (i.e., when an employee starts work for pay), and comply with all other Form I-9 requirements.
Once the E-Verify system is again functional at the end of the shutdown, we advise that employers process the E-Verify inquiry on the employees who were subject to the shutdown freeze period. The E-Verify inquiry may trigger a question requesting why the employer is outside the three-day window. If not inserted as an option, we recommend considering typing: “Federal Government Shutdown” under the “other” drop-down selection.
USCIS has indicated that employers may continue to use the new alternate document review process for remote Form I-9 document verification if E-Verify is temporarily unavailable due to a government shutdown.3
Department of Homeland Security (DHS)
DHS has already issued guidance outlining a contingency plan in anticipation of the 2023 government shutdown. DHS notes that “nearly three in four DHS employees . . . would be required to continue working through a shutdown, without receiving a paycheck. Those working without pay include law enforcement officers, analysts, investigators, and disaster response officials.” For example, inspection and law enforcement personnel would be considered “essential” and would continue to work at border ports-of-entry.4
However, we note that, in past government shutdowns, Immigration and Customs Enforcement (ICE) has not served any Notices of Inspections for Form I-9 audits. Rather, we would expect that ICE will resume issuing such notices after the government re-opens.
Customs and Border Protection (CBP)
CBP is the federal law enforcement agency of DHS charged with regulating and facilitating international trade, examining cargo and passengers at ports-of-entry, collecting import duties, as well as enforcing U.S. regulations, including trade, customs, and immigration.
Since inspection and law enforcement personnel are considered “essential,” ports-of-entry should remain open to process passengers and border crossings. It remains to be seen if the processing of visa applications (i.e., new employment-based visa requests, such as TNs or L-1s) at the border will be impacted.
Department of State (DOS)
Operations at U.S. embassies and consulates abroad to process and issue new U.S. visas and passports are fee-funded and thus also should not be impacted by a potential government shutdown. However, consular operations can still be affected if operations cannot be sustained based on local conditions (e.g., during COVID-19). If there are insufficient fees to support staffing and operations, smaller posts could potentially close routine operations.
Practically, we caution employers to maintain awareness of the possible upcoming government shutdown and its impact on immigration-related filing deadlines for employees. We recommend interfacing with counsel when needed to address possible immigration-related issues and questions regarding E-Verify protocols.
Littler will continue to monitor the impact of the government shutdown on immigration processes and will provide updates as they become available.