Impact of Possible Federal Government Shutdown on Immigration-Related Agencies
As of Friday, September 20, 2024, Congress has yet to pass an appropriations bill that will keep the government open at the beginning of the new fiscal year on October 1, 2024. Negotiations to pass a temporary, three-month stopgap funding bill to avert a government shutdown appear to be underway after the House failed to pass Speaker Mike Johnson’s (R-La.) six-month stopgap funding bill last Wednesday. Unless Congress passes, and President Biden signs a funding bill, by midnight on September 30, 2024, the government will shut down at 12:01 am EST on Sunday, October 1, 2024, until a funding bill is signed into law. Below is a summary of how a government shutdown will impact immigration-related services:
U.S. Citizenship and Immigration Services
The U.S. Citizenship and Immigration Services (USCIS)’s operations are fee-funded and a government shutdown should not directly impact the agency’s activities. Similar to the last government shutdown, the USCIS will continue to accept and process petitions and applications for immigration benefits, such as nonimmigrant petitions (e.g. H-1B, O, L) and I-130/I-140 immigrant petitions, extension and change of status applications, adjustment of status (green card) applications, and citizenship applications. Furthermore, local USCIS field offices should remain open and applicants are advised to attend interviews and appointments as scheduled. However, certain USCIS programs that are subject to congressional authorization or are government-funded, such as the E-Verify system (see below) and the Conrad 30 Waiver Program for J-1 Medical Doctors, can experience interruptions during a government shutdown. The EB-5 Immigrant Investor Regional Center Program, which requires congressional authorization, should not be impacted by a government shutdown as it was authorized through September 30, 2027.
E-Verify
If there is a lapse in government funding, the E-Verify system will likely not be available for employers during a government shutdown. Employers will not be able to access their E-Verify accounts to enroll or create E-Verify cases during this time. Please note that a government shutdown does not affect employer compliance with Form I-9 requirements.
Department of Labor
The Department of Labor (DOL)‘s Office of Foreign Labor Certification (OFLC) operations will be suspended if there is a government shutdown. The DOL will stop processing all applications and the OFLC's FLAG system will be inaccessible to file PERM Labor Certification Applications, requests for Prevailing Wage Determinations, and Labor Condition Applications (LCAs) for H and E-3 nonimmigrant visa petitions. Furthermore, pending applications will be placed in abeyance until DOL resumes operations.
Department of State
Similar to the USCIS, the Department of State (DOS)’s visa and passport operations are fee-funded, and most immigration-related programs with the DOS should not be directly impacted by a government shutdown. However, processing times at US consular posts and embassies may be delayed.
Customs and Border Protection
The Customs and Border Protection (CBP)’s operations are considered “essential” and will continue during a government shutdown. U.S. ports of entry will remain open to process travelers entering the United States. However, as was the case during previous government shutdowns, it is possible that the processing of applications or petitions filed with the CBP at U.S. ports of entry/border or deferred inspection offices may be delayed, and people seeking to enter the United States may face longer wait times.
What this Means for Our Clients
The government shutdown could significantly impact most employment-based immigration matters. Although the USCIS and DOS will continue to accept and process petition and application filings during a government shutdown, employers could experience serious disruptions in onboarding new employees, and filing extensions or amendments for existing employees, as most employment-based USCIS petitions and some DOS visa applications, such as H-1Bs, E-3s, and PERM-based I-140 immigrant petitions, require certifications from the DOL as a prerequisite to filing. Furthermore, the inability to timely file a PERM Labor Certification Application could impact an H-1B employee’s eligibility to extend their status beyond the sixth year. Anticipating the possibility of a government shutdown, our team has been filing all LCA and PERM Labor Certification Applications that are eligible to be filed with the DOL before September 30, 2024. We will also be reaching out to our clients who will be impacted by the government shutdown for contingency planning.
Please contact our office should you have any questions regarding the government shutdown. We will provide updates as more information becomes available.