Several Immigration Processes to be Affected If U.S. Government Shuts Down

Dinsmore & Shohl LLP

Dinsmore & Shohl LLP

If the United States Congress cannot reach a budget agreement to continue funding Federal government operations, the U.S. government will shut down non-essential functions Sunday, October 1, 2023.  During the shutdown, immigration-related government agencies will be affected as described below.

Citizenship and Immigration Services (USCIS)

USCIS is funded by the fees it receives in connection with petitions and applications it processes and will not close.  Some functions that are not fee-funded, such as E-Verify, would cease operation until the shutdown ends.  E-Verify employers will still be required to complete Forms I-9 during the shutdown and then submit those to the E-Verify system once the shutdown ends and the website comes back online. E-Verify employers will also be able to use the remote Form I-9 verification process during a shutdown.

Customs and Border Protection (CBP)

Protecting the U.S. border is considered essential and CBP will continue to operate. All U.S. ports of entry will remain open, including border crossings and airports, to process passengers.  However, the processing of some immigration applications, such as TN and L-1 applications typically filed at the U.S. border, may be affected by a shutdown.

Immigration and Customs Enforcement (ICE)

ICE is considered essential and will remain open. ICE attorneys will continue to process the docket for detained foreign nationals.  The Student and Exchange Visitor Program (SEVP), which controls F-1 foreign students and is supported by filing fees, will also continue to operate.  

Department of Labor (DOL)

The DOL will close, which means it will not process Labor Condition Applications (the wage attestation that is a required part of H-1B visa filings), Requests for Prevailing Wage Determinations (PERM) and PERM applications that have been submitted for processing. The DOL also hosts several websites which will not be functional during a shutdown, including the Office of Foreign Labor Certification (OFLC) which publishes H-1B wage data and the Foreign Labor Application Gateway (FLAG system).   Historically, the DOL has extended filing deadlines for time sensitive applications impacted by government shutdowns.  However, no such guarantee has been extended at this time. 

Department of State (DOS)

Many of DOS’ functions are fee-funded and will continue to operate.  However, fees generated by visa applications and other filings do not generate enough fee-based revenue to fully operate the agency during a shutdown.  As such, U.S. Embassies and Consulates will focus on emergencies and diplomatic visas until the shutdown ends.  Individuals who have visa appointments abroad during the shutdown will be required to reschedule their appointments and may be stranded outside of the U.S. for an extended period of time until a new appointment becomes available.  Unnecessary travel should be avoided, in this time of uncertainty. 

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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