As the possibility of a federal government shutdown looms, employers should prepare for disruptions to key immigration processes. A shutdown affects federal agencies differently depending on their funding sources and operational mandates. Below is a summary of the anticipated impact on some of the immigration-related agencies.
U.S. Citizenship and Immigration Services (USCIS) – USCIS is primarily fee-funded, which allows it to continue most operations during a shutdown.
- Impact on employers:
- Form filings (H-1B, L-1, I-140, I-485, etc.) will continue to be accepted and adjudicated.
- Premium Processing is expected to remain available.
- However, functions reliant on appropriated funds—such as the E-Verify system—will be suspended. Employers will be unable to initiate new E-Verify cases, though employees should not face penalties for delays caused by the shutdown.
Department of Labor (DOL) – The Office of Foreign Labor Certification (OFLC), which manages PERM, prevailing wage applications, and Labor Condition Applications (LCAs), depends on congressional appropriations.
- Impact on employers:
- Processing of Labor Condition Applications (LCAs) and PERM Labor Certifications will cease during the shutdown.
- The FLAG system (Foreign Labor Application Gateway) will be inaccessible for new filings.
- Pending applications will remain frozen until funding resumes. This could create downstream delays for H-1B, H-1B1, and E-3 filings that require certified LCAs, as well as for green card sponsorship via PERM.
- Employers should expect backlogs once operations restart.
- OFLC confirmed that USCIS should still be able to access data that was uploaded from FLAG into VIBE before the shutdown in order to continue adjudicating certain I-129 H-2 and I-140 PERM-based petitions.
U.S. Customs and Border Protection (CBP) – CBP officers are considered “essential personnel” and will continue to report for duty.
- Impact on employers and foreign nationals:
- U.S. ports of entry and airports will remain operational, and foreign nationals can continue to enter and depart the United States.
- Adjudications at ports of entry (e.g., L-1 admissions under Blanket approvals, TN entries) will continue.
- Employers should anticipate possible staffing shortages, which may result in longer processing and wait times at certain ports.
Department of State (DOS) – Visa operations are largely fee-funded, allowing many services to continue even during a shutdown.
- Impact on employers:
- U.S. consulates and embassies abroad are expected to continue processing visa applications as long as fee revenue suffices.
- Nonimmigrant and immigrant visa interviews will generally proceed.
- That said, if a shutdown is prolonged and fee reserves are exhausted, consular operations could slow or suspend, creating significant disruptions for employees abroad awaiting visas.
Practical guidance for employers
- File in advance: Submit LCAs, prevailing wage requests, and PERM filings as soon as possible before a potential shutdown (Sept. 30).
- Plan for delays: Anticipate disruption in DOL-dependent processes, which may impact the timing of H-1B change of employer, extensions, or green card sponsorship.
- Monitor E-Verify: Employers using E-Verify should be aware of the system suspension and retain documentation of affected cases.
- Prepare employees traveling abroad: Advise employees with pending visa appointments to attend as scheduled, but remain cautious of possible slowdowns.
While USCIS, CBP, and DOS can continue many functions during a shutdown, the Department of Labor will effectively halt operations, creating the most immediate impact on employers. Proactive planning and early filings are essential to minimizing disruption. Clark Hill will continue to monitor any developments on the government shutdown.
