Impact of Looming Federal Government Shutdown on Immigration-Related Agencies

As of Friday, September 29, 2023, Congress has yet to pass a funding bill that will keep the government open after the end of the fiscal year on September 30, 2023. Efforts to pass a temporary, bi-partisan stop-gap funding bill that would keep the government open through November 17, 2023 appear to have failed at this time. Unless Congress passes, and President Biden signs a funding bill within the next 36 hours, the government will shut down at 12:01 am EST on Sunday, October 1, 2023. The government shutdown will remain in place until a funding bill has been passed. The last government shutdown occurred during the Trump Administration in December 2018, which lasted a record-breaking 35 days.

Below is 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. The USCIS has confirmed that employers may continue to use the new alternate document review process for remote Form I-9 document verification if E-Verify is temporarily unavailable due to a government shutdown.

Department of Labor

The Department of Labor (DOL)‘s Office of Foreign Labor Certification (OFLC) operations will likely cease completely if there is a government shutdown. Unlike 2018 where the DOL had secured funding prior to the government shutdown, the DOL will cease processing all applications if a government shutdown occurs on October 1st and the OFLC's web-based application systems will be inaccessible. As such, it will not be possible to file PERM Labor Certification Applications, Prevailing Wage Determination requests, or Labor Condition Applications (LCAs), until the shutdown ends. Furthermore, pending applications will be placed in abeyance until DOL resumes operations. At this time, the OFLC has yet to provide guidance about flexibilities for employers with filing deadlines. Although the DOL provided accommodations to accept applications that were affected by a previous government shutdown in 2013, there is no guarantee that the agency will do so again.

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, like the last government shutdown, 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, 2023. 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.