Immigration Consequences of a Possible Federal Government Shutdown on October 1, 2023

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Annually, at the outset of the federal fiscal year, the U.S. Congress must reach an agreement to fund the federal government. If Congress cannot agree and pass the necessary appropriations bill, a partial government shutdown may occur. The impact of a shutdown come October 1, 2023, will vary among agencies, including those responsible for immigration-related matters, based on whether the agencies are fee generating (among other factors), and it is expected that certain government functions will continue.

Quick Hits

  • A federal government shutdown could hamper government agencies that are responsible for immigration-related matters.
  • Companies that employ foreign nationals could face disruptions related to obtaining certified LCAs for H-1B, H-1B1, and E-3 petitions.

While a government shutdown is not certain at this stage, in the event that one occurs, service delays impacting immigration benefits should be expected. Applying experience from prior shutdowns, a disruption in the provision of immigration services is foreseeable.

  • U.S. Citizenship and Immigration Services (USCIS) is a fee-generating agency; accordingly, it does not rely primarily on government funding. During past shutdowns, USCIS offices generally continued to operate; however, slowdowns and processing delays can be expected due to reduced staff, particularly in instances when USCIS adjudicators rely on other government functions to render decisions.
  • The U.S. Department of State is partially funded by visa application fees and related fees, which have historically permitted it to continue to offer U.S. citizen services and visa processing; however, it is possible that nonemergency services could be suspended during a prolonged shutdown. If that were to occur, business and employment visas would not be issued and pending visa application appointments would likely be canceled or rescheduled.
  • Historically, the U.S. Department of Labor (DOL) has been substantially impacted by government shutdowns, as the agency is not fee generating. As such, during past government shutdowns, immigration functions—including those related to the submission of labor condition applications (LCAs), PERM labor certification applications, and prevailing wage requests—were suspended, adding to backlogs and longer processing times even after government operations were restored.
  • Importantly, an inability to process LCAs would directly impact employers’ ability to move forward with H-1B, H-1B1, and E-3 petitions.
  • E-Verify will likely not be operational in the event of a shutdown, meaning that employers would not be able to initiate, resolve, or otherwise meet relevant deadlines in the system until the program is reauthorized after government operations resume. Employers will continue to be responsible for I-9 verification obligations without exception.

In sum, a U.S. government shutdown would likely increase the processing times for most immigration-related matters. The most significant impacts of a shutdown likely to affect U.S. employers employing foreign nationals include

  • the inability of employers to obtain certified LCAs for H-1B, H-1B1, and E-3 petitions;
  • the DOL’s inability to process PERM labor certifications and prevailing wage determinations; and
  • the potential inability of individuals to apply for business and employment visas to enter the United States.

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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