Published on September 29, 2023
(Updated October 2, 2023)
OCTOBER 2, 2023 ARTICLE UPDATE:
As an update, on Saturday, September 30, 2023, Congress passed a continuing resolution to temporarily avoid a government shutdown. The passage of the continuing resolution means that there will be no interruption of government operations for 45 days, through November 17, 2023. As the federal government will continue to be funded until November 17th, immigration-related agencies will continue their operations, including the processing of PERM applications, Prevailing Wage Requests, and Labor Condition Applications (LCAs) for H-1B, E-3, and H-1B1 petitions. There is still a risk of a government shutdown if the 12 spending bills or another continuing resolution are not passed to keep the government open beyond November 17th.
If Congress fails to pass any of the spending bills needed to keep the government open beyond September 30, 2023, funding for U.S. federal government agencies will lapse by midnight (ET) on October 1, 2023, which may result in the shutdown of some government agencies. If the government agencies close for budgetary reasons, all but “essential” personnel will be furloughed and not permitted to work.
Based on prior shutdown periods, the following is an overview of how immigration-related agencies may be impacted by the shutdown:
- United States Citizenship and Immigration Services (USCIS): As a fee-funded agency, it is anticipated that USCIS will not be negatively impacted by the shutdown, except programs that receive appropriated funds, such as the Special Immigrant Religious Workers Program, and the Conrad 30 Waiver Program. Further, E-Verify has been historically unavailable during a government shutdown due to a lack of budget funding. If E-Verify is unavailable, employers will not be able to initiate E-Verify queries or resolve tentative non-confirmations; however, employers would remain subject to normal Form I-9 obligations and deadlines. USCIS has confirmed that qualifying employers may continue to use the alternative document review process for remote Form I-9 document verification, even if E-Verify is temporarily unavailable.
- Immigration and Customs Enforcement (ICE): ICE enforcement activities and removal operations will continue. Further, as a fee funded system, the Student and Exchange Visitor Information System (SEVIS) will not be impacted.
- Department of Labor (DOL): The Office of Foreign Labor Certification (OFLC) would cease processing all applications in the event of a government shutdown. OFLC’s web-based systems, FLAG and PERM, would be suspended. This means that the submission of new Labor Condition Applications (LCAs) will not be possible until the government re-opens, and will therefore impact H-1B, E-3, and H-1B1 workers’ ability to change employers and extend their status. Further, submissions and adjudications of PERM applications and prevailing wage requests will also be temporarily suspended.
- Department of State (DOS): Visa and passport operations are fee-funded and are unlikely to be impacted. Consular operations may be impacted if there are insufficient fees to support operations at a particular post. This may cause a delay in visa processing and issuance for some Consular posts. Therefore, individuals who are currently traveling abroad to obtain their visas may be impacted, depending on the post.
- Customs and Border Protection (CBP): U.S. ports of entry will remain open, and processing of passengers will continue, as inspection and law enforcement personnel are considered essential; however, processing of applications and petitions filed at the border, such as TN and L-1 petitions, may be delayed or otherwise impacted.
Contact the immigration group at Ryan, Swanson & Cleveland if you have any questions about how the government shutdown may impact your workforce.