Potential Government Shutdown’s Effects on Immigration Agencies

There is widespread concern about the impact on U.S. immigration if the U.S. Federal Government shuts down on October 1, 2023, if Congress fails to reach a consensus on the annual spending bill or a temporary funding resolution.  In similar situations in the past the White House published contingency plans of federal agencies detailing each agency’s strategy in case of a government shutdown. We expect this will happen once again.

Here, we provide an overview of the potential ramifications a government shutdown may have on immigration agencies:

  1. U.S. Citizenship & Immigration Services (USCIS):  The USCIS derives its funding primarily from user fees, making it less reliant on federal funds for its day-to-day operations. Consequently, the processing of all applications and petitions is anticipated to continue without significant disruptions. The only potential exception arises when a petition or application necessitates certification from another affected federal agency, such as an H-1B petition requiring certification from the Department of Labor (DOL).
  2. Department of Labor (DOL): The Office of Foreign Labor Certifications (OFLC), which oversees a substantial portion of immigration processes, falls under the purview of the DOL. Historically, the DOL has been closed during government shutdowns, leading to the likelihood that it will not accept or process Labor Condition Applications (LCAs), Prevailing Wage Determinations, or Applications for Permanent Employment Certification (PERM). Furthermore, the operational status of the DOL significantly impacts USCIS petitions that necessitate a certified LCA (such as H-1B, H-1B1, and E-3 visa petitions). The USCIS has, in the past, temporarily waived the LCA requirement for status maintenance filings during such periods. Likewise, the DOL’s status may affect the timing requirements of PERM applications, with the DOL historically extending deadlines that coincide with government shutdowns.
  3. Department of State (DOS): The continuity of consular operations and visa issuance during a government shutdown remains uncertain. The DOS maintains a limited reserve of funds to sustain its operations. However, prior shutdowns have witnessed a reduction or suspension of visa issuance by the Department of State. Individuals with international travel plans necessitating a new visa stamp while abroad should closely monitor the situation and consider adjusting their travel plans, as there may be a risk of being unable to re-enter the United States.
  4. Customs and Border Protection (CBP): Notably, during a government shutdown, borders will remain open and the CBP will continue its operations. Therefore, individuals holding valid visas should not experience issues when entering through ports of entry. However, individuals intending to apply for an immigration benefit at a port-of-entry or a pre-clearance facility (e.g., TNs and L-1s for Canadian nationals) should diligently check the operational status of their chosen location for the most up-to-date information.

As the potential government shutdown date approaches, staying informed about the evolving situation will be essential for individuals, agencies, and organizations involved in immigration processes. The impact on immigration agencies may vary, but proactive planning and monitoring can help mitigate potential disruptions and impediments.

LawQuest will continue to monitor the situation and keep you posted on any further developments.

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