Updated September 26, 2023
As the potential for a shutdown on October 1, 2023, looms, historical operations during past shutdowns can provide insight. The Department of Homeland Security (DHS) published guidance in 2022, outlining what functions continue during a funding lapse. While the information is hardly comprehensive, it provides a glimpse into the orderly shutdown process.
For immigration purposes, the distinction in service interruption is primarily between programs funded by fees and those relying on congressional appropriations.
What is a Government Shutdown?
A government shutdown occurs when Congress cannot agree and pass the necessary appropriations bill to fund the federal government. If this happens, a partial government shutdown may occur, affecting various agencies, including those responsible for immigration-related matters.
Impact on Various Agencies - General Shutdown Information:
Most government agencies will close for budgetary reasons. Only “essential” personnel remain working; others are furloughed.
Operations funded by user fees might face limitations but shouldn't stop entirely. Those dependent on congressional appropriations might close all but vital functions.
U.S. Citizenship and Immigration Services (USCIS)
USCIS is a fee-generating agency, meaning it does not rely primarily on government funding. During past shutdowns, USCIS offices generally continued to operate; however, slowdowns and processing delays can be expected due to reduced staff.
- The EB-5 Immigrant Investor Regional Center Program won't be affected by a shutdown since its approval extends to September 30, 2027.
- The Special Immigrant Religious Worker Program is set to end on September 30, 2023, unless new legislation or a funding package is enacted before then.
- USCIS has affirmed that during a government shutdown, employers can still use the alternative process for verifying documents remotely for Form I-9 if E-Verify is inaccessible.
- Historically (and under the regulations - "circumstances beyond [your] control"), after a government shutdown, USCIS has allowed delayed submissions of I-129, as long as the delay reason was supported with evidence linking it primarily to the shutdown. The Form I-129 is used for: H-1B, H-2A, H-2B, H-3, L-1, O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1 or R-1 nonimmigrant worker. Petitioners also use this form to request an extension of stay in or change of status to E-1, E-2, E-3, H-1B1, or TN.
U.S. Department of State (Visas)
The U.S. Department of State is partially funded by visa application fees and related fees, which have historically permitted it to continue to offer U.S. citizen services and visa processing. However, nonemergency services could be suspended during a prolonged shutdown. If that were to occur, business and employment visas would not be issued, and pending visa application appointments would likely be canceled or rescheduled.
U.S. Department of Labor (DOL)
Government shutdowns have substantially impacted the DOL in the past, as the agency is not fee-generating. During past government shutdowns, immigration functions—including those related to submitting labor condition applications (LCAs), PERM labor certification applications, and prevailing wage requests—were suspended, adding to backlogs and longer processing times even after government operations were restored.
According to AILA:
AILA reached out to the DOL’s Office of Foreign Labor Certification (OFLC) regarding what would happen to OFLC’s operations should the federal government shut down on Sunday, October 1, at midnight (ET) due to budget issues. OFLC confirmed that if the federal government shuts down, OFLC will have to disable the FLAG system and will not be able to accept any applications during this period. Additionally, the Committee notes that users will not be able to access the FLAG system to print out any previously approved applications.
To the extent that PERM filers with impending deadlines can file now, OFLC recommends that they do so by 11:59 pm (ET) on September 30. Likewise, if an employer will need an LCA, OFLC encourages them to file this week (Committee note: week of September 18). While a possible shutdown may be less than seven working days away, OFLC indicated that there is a reasonable chance that LCAs submitted this week could be adjudicated before the end of next week.
In the event that there is a shutdown, OFLC is considering issuing guidance about flexibilities for employers with filing deadlines.
What can you do today?
In light of these potential disruptions, here are some practical steps you can take:
1. Plan Ahead: Try to submit any necessary applications or paperwork well in advance.
2. Stay Informed: Keep an eye on news updates about the status of the shutdown and how it’s affecting immigration services.
3. Seek Legal Advice: If you’re unsure about how the shutdown might affect your immigration status or application process, consider seeking advice from an immigration attorney.
4. Be Patient: Understand that there may be delays in processing times due to reduced staffing levels.
Remember that while a government shutdown can disrupt many services, essential functions will continue to operate. It’s important to stay informed and prepared during these times.