If Congress does not reach a budget agreement by September 30, 2023, the federal government will shut down October 1. Below is a brief overview of the potential immigration impact based on how government agencies operated during prior shut downs.
U.S. DEPARTMENT OF LABOR (DOL)
DOL will cease accepting or processing applications for Labor Condition Applications (LCAs) needed for H-1B petitions and E-3 applications, prevailing wage applications, and PERM labor certification applications. DOL may issue guidance providing flexibility to employers who are unable to file PERM labor certification applications with expiring recruitment due to the shutdown.
U.S. CITIZENSHIP AND IMMIGRATION SERVICES
Because USCIS application and petition adjudications are primarily funded by user application fees, USCIS is expected to continue operations without great disruption, though processing times may slow. However, the filing of H-1B petitions and E-3 applications will be impacted, as a DOL-issued LCA is required for the filing (see above). In the past, USCIS accepted late filings if failure to timely file an H-1B or E-3 extension was due to the government shutdown.
In contrast, USCIS E-Verify service is appropriations-funded and will be suspended. If the government shuts down, employers will not be able to enroll in E-Verify or to access their E-Verify accounts to verify the employment eligibility of new hires and resolve tentative nonconfirmations (TNCs). E-Verify customer service, online webinars and training sessions, and the Self-Check program will also be unavailable during the shutdown. Employers must still comply with their Form I-9 obligations.
U.S. CUSTOMS AND BORDER PROTECTION
CBP personnel, responsible for inspection and law enforcement at U.S. ports of entry, are considered “essential personnel” and are expected to work without pay during a shutdown. U.S. borders and Preflight Inspections (PFI) areas will remain open. However, there may be staffing adjustments that could result in increased wait times to clear inspection and secure admission to the U.S. Additionally, adjudication of petitions by CBP officers at the border and PFI areas, such as TN applications and L-1 petitions for Canadian citizens, is expected to continue.
U.S. DEPARTMENT OF STATE
Visa and passport services are fee-funded and should continue as long as there are sufficient fees to support operations. However, passport offices housed in government buildings otherwise closed during a shutdown may become unavailable to the public. U.S. Embassies and Consulates remain open and will continue to process visa applications as long as funding remains in place. Visa application processing times may be delayed due to staffing adjustments or slowdowns at other federal agencies responsible for processing the security clearances required for visa issuance. A prolonged shutdown could ultimately exhaust DOS appropriations and result in the suspension of visa processing functions for all but emergency cases.
The situation posed by the federal government shutdown remains fluid. If a shutdown occurs, the impact on immigration related services may change the longer any shutdown persists. Gibney will be closely monitoring the situation and will provide updates.
The general information provided herein is not intended to serve as a source of legal advice for any purpose.