• A government shutdown was narrowly avoided on September 30, 2023 after Congress passed a continuing resolution to fund the government for an additional 45 days. However, another shutdown is possible if Congress does not pass the required bills by the end of the 45-day resolution on November 17, 2023. In the event of a government shutdown, various immigration-related agencies would likely pause operations or continue to operate on a limited scale. Of particular import to employers are United States Citizenship & Immigration Services (USCIS) and the Department of Labor (DOL).
  • USCIS: Although USCIS is a fee-funded agency and would likely continue to function relatively unaffected throughout a government shutdown, programs that receive appropriated funds – such as E-Verify and Conrad 30 J-1 doctors – would be suspended.
  • DOL: Further, the DOL’s Office of Labor Certification (OFLC) would shut down completely and be unable to process applications through its online portal. These include PERM applications, prevailing wage requests, and Labor Condition Applications (LCAs) required to file H-1B petitions.
• According to the American Immigration Lawyers Association (AILA), “In the past, when the government reopened, USCIS accepted late I-129 filings provided the petition was submitted with evidence that the primary reason for failing to timely file an extension of stay or change of status request was the government shutdown.” Employers should still be mindful of the threat of a government shutdown and work with both foreign national employees and legal counsel to determine any items that need to be filed through the DOL and/or USCIS prior to November 17, 2023.
• USCIS posted the November Visa Bulletin Report and announced that all family and employment-based applicants must use the Dates for Filing Chart. Overall, the November Visa Bulletin Report shows very little movement from October with EB1 India and China remaining retrogressed as well as EB2 and EB3 in the All Other Chargeability category at January and February 2023 respectively.
• On September 27, 2023, USCIS announced a new policy that increases the maximum validity period from two to five years for certain categories of applicants for initial and renewal Employment Authorization Documents (EADs). Notably, this includes employment authorized individuals with pending adjustment of status applications. Further, as part of this announcement, USCIS clarified that certain categories of employment authorized individuals can use their Form I-94 Arrival/Departure record as a List C document for I-9 Employment Authorization Verification purposes, including spouses of principal E and L-1 nonimmigrants.
• The USCIS temporary final rule allowing automatic extension of employment authorization for certain renewal applicants up to 540 days will expire on October 26, 2023. Employers and employees alike should be aware that applications to extend employment authorization via Form I-765 will only be eligible for an automatic extension of up to 180 days if filed after October 26.
• On October 2, 2023, the Supreme Court denied certiorari in the case of The Washington Alliance of Technology Workers (WashTech) vs. the Department of Homeland Security (DHS). In 2016, WashTech filed an official complaint regarding the regulations for STEM Optional Practical Training (OPT), arguing that the DHS does not have the express authority to grant employment authorization to F-1 students following graduation. The recent move by the Supreme Court effectively upholds the STEM OPT regulations and will therefore continue to allow employment authorization for F-1 students after their completion of an academic program.

Emma Fahey assisted in writing this article. Emma is an Immigration Project Assistant at Holland & Hart and is not an attorney.