Looming U.S. Government Shutdown Directly Impacts Employers Hiring and Retaining Foreign Workers Through H-1B, H-2A/H-2B and/or PERM/Labor Certification Programs

Ulmer & Berne LLP

The Department of Labor (DOL) confirmed that, in the event of a federal shutdown, the agency would cease processing all foreign labor applications, which is an essential and critical step in a U.S. employer’s ability to hire a foreign worker for a temporary or permanent indefinite basis. The DOL’s Office of Foreign Labor Certification (OFLC) further confirmed that if the federal government shuts down, the OFLC will have to disable the Foreign Labor Application Gateway (FLAG) system and will not be able to accept any applications beginning October 1, 2023, and for the duration of the shutdown. Additionally, users will not be able to access the FLAG system to print out any previously approved applications.

US Citizenship and Immigration Services (USCIS), which is funded by filing fees, will likely continue to operate because it is not dependent on congressional appropriations to fund its operations. However, immigration programs that are not funded by stakeholder fees will likely cease operations. This includes: E-Verify, the EB-5 Immigrant Investor Regional Center Program, Conrad 30 J-1 doctors, and non-minister religious workers.

The Department of State (DOS) visa and passport operations are fee-funded and thus are not normally impacted by a lapse in appropriations. Consular operations can nevertheless be impacted if there are insufficient fees to support operations at a particular post. In such a case, posts will generally only handle diplomatic visas and “life or death” emergencies.

U.S. Customs and Border Protection (CBP) inspection and law enforcement personnel are considered “essential.” Ports of entry will be open, and processing of passengers will continue; however, processing of applications filed at the border may be impacted.

U.S. Immigration and Customs Enforcement (ICE) enforcement and removal operations will continue, and ICE attorneys will typically focus on the detained docket during a shutdown. The ICE Student and Exchange Visitor Program (SEVP) offices are unaffected since SEVP is funded by fees.

Executive Office for Immigration Review (EOIR) immigration court cases on the detained docket will proceed during a lapse in congressional appropriations, while non-detained docket cases will be reset for a later date when funding resumes. Courts with detained dockets will receive all filings but will only process those involving detained dockets. Courts with only non-detained dockets will not be open and will not accept filings. Courts should issue an updated notice of hearing to respondents or representatives of record for reset hearings. Members may want to check with their local chapters for court-specific instructions. While EOIR has not issued any guidance about credible fear reviews or cases in the Family Expedited Removal Management (FERM) program, these cases are likely to be categorized as essential and will likely continue during a shutdown.

This client alert was prepared with information published by the American Immigration Lawyers Association (AILA).  

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Ulmer & Berne LLP

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