What’s Happening
It appears increasingly likely that Congress will fail to agree on a budget ahead of the start of the new fiscal year on October 1, 2023. Should this occur, federal government operations will shut down to varying degrees based on the essential nature of the impacted government agency and whether/how much they rely on government appropriations as part of their operating budget. As such, a government shutdown will not bring processing of immigration benefits to a total halt, but will have an impact based on the specific agencies handling certain immigration benefits. Should a shutdown occur, Federal agencies that rely on government funding must halt all but “essential” functions, and only “essential” personnel are allowed to work. Fee-funded agencies will remain operational but their services may still be impacted. Should the government shutdown, processing delays should be expected, even for agencies that remain operational.
The government has shut down before, and while we cannot guarantee particular outcomes, the immigration consequences of previous shutdowns provide us with a guide as to what we can expect if the government shuts down on October 1, 2023. Below we outline how a government shutdown is expected to impact the various agencies involved in U.S. immigration enforcement and benefits.
US Citizenship and Immigration Services
As a largely fee-funded agency, USCIS should experience minimal impact from a government shutdown and most programs should continue without interruption. However, there are a few USCIS programs funded by congressional appropriations, which may be suspended or otherwise impacted by a shutdown, including E-Verify, the EB-5 Immigrant Investor Regional Center Program, the Conrad 30 J-1 Waiver program, and the Special Immigrant Religious Workers program. Notably, E-Verify and the EB-5 program will be impacted as follows:
E-Verify. E-Verify will likely be interrupted during a government shutdown. While employers will continue to be responsible for I-9 verification obligations, they will not be able to initiate, resolve, or otherwise meet relevant deadlines in E-Verify until the program restarts. In the past, USCIS suspended the “three-day rule” for E-Verify cases affected by E-Verify’s unavailability during a shutdown and extended the period during which employers could resolve a tentative non-confirmation to exclude the number of days E-Verify was unavailable. Still, employers were required in all cases to complete Form I-9 no later than the third business day after an employee’s start regardless of the availability of E-Verify. If E-Verify becomes unavailable next week, USCIS has confirmed that eligible employers may continue to use the new alternate document review process for remote I-9 document verification even where they are temporarily unable to initiate a case in E-Verify.
EB-5 Immigrant Investor Regional Center Program. Unlike past shutdowns, this program should not be affected as it was authorized through September 30, 2027.
While all other USCIS operations should continue business as usual, USCIS decisions that rely on other government agencies, such as nonimmigrant visa petitions, including H-1Bs, E-3s, and H-1B1s, that require a Labor Condition Application (LCA) from the Department of Labor, will be delayed. In the past, USCIS has accepted late I-129 filings, where the petition contains evidence that the filing was delayed primarily due to the inability to obtain a certified LCA from the Department of Labor.
Department of Labor
As an agency that relies heavily on government appropriations, the DOL will cease operations in the event of a shutdown. The Office of Foreign Labor Certification (OFLC) will cease processing all applications, personnel will not be available to respond to inquiries, the web-based FLAG and PERM systems will be inaccessible, and BALCA dockets will be placed on hold.
In the event of a shutdown, the FLAG and PERM systems will be disabled at midnight (ET) on Sunday, October 1. OFLC will not be able to accept or consider applications during the period of the government shutdown, including LCAs, PERM labor certifications, and prevailing wage determinations. Even after government funding resumes, longer processing times are expected as the OFLC works through the backlogs that developed during the shutdown.
Note, however, that OFLC is considering issuing guidance for employers with filing deadlines about possible flexibilities and, as mentioned above, USCIS will likely accept late I-129 filings if the petitioner submits evidence that the primary reason for the late filing was the government shutdown.
Department of State
Visa and passport operations are fee-funded and should not be affected by a government shutdown. Nevertheless, consular operations may be impacted at a particular post and may limit their operations to diplomatic visas and “life or death” emergencies.
Customs and Border Protection
CBP’s operations should be unaffected by a government shutdown, as inspection and law enforcement personnel are considered “essential”. Ports of entry will remain open. However, processing of border TN and L-1 applications may be impacted.
Immigration and Customs Enforcement
ICE should be unaffected by a government shutdown. Enforcement and removal operations will continue, and ICE attorneys will typically focus on the detained docket. The ICE Student and Exchange Visitor Program is fee-funded and so will be unaffected.
Executive Office for Immigration Review
Immigration court cases on the detained docket will proceed, while those on the non-detained docket will be reset for a later date when government funding resumes. Courts with only non-detained dockets will not be open and will not accept filings during a government shutdown. Credible fear reviews and cases in the Family Expedited Removal Management program should continue, as they are likely to be categorized as “essential”.
Please note that the above is for informational purposes and does not constitute legal advice. For specific questions about the consequences of a government shutdown on your specific circumstances, please contact your team at D&S.