At a glance
- If Congress is unable to pass an appropriations bill or a stopgap spending measure before 12:01am ET on December 21, some immigration functions will be suspended in a federal shutdown.
- A shutdown would mean that Department of Labor immigration functions such as LCA, prevailing wage, and PERM processing would be suspended until Congress passes a further stopgap spending measure or a FY 2025 budget.
- Fee-based immigration processing – including USCIS benefit and State Department visa and passport processing – will continue, though with potential delays if a shutdown is lengthy. However, the USCIS E-Verify, EB-4 non-minister religious worker program, and the Conrad 30 programs would expire if Congress fails to extend them.
- A shutdown is not certain, but as the deadline for a resolution nears, employers and foreign nationals should be prepared for the possibility.
The issue
Debate over the FY 2025 federal budget has intensified in Washington, increasing the possibility of a federal government shutdown and the suspension or delay of some immigration functions if an appropriations bill or stopgap measure cannot be reached the end of Friday, December 20.
A closer look
Should a shutdown occur, the following would be the expected impact on immigration operations based on prior shutdowns in previous years. Fragomen will provide updates on ongoing developments.
Department of Labor (DOL): DOL immigration functions would likely be suspended as non-essential functions. No PERM applications, labor condition applications (LCAs), prevailing wage requests (PWRs), or applications for temporary labor certification would be processed. Online application systems would be taken offline and would not accept PERM applications or audit responses, LCAs, or prevailing wage requests. The agency would also be unable to accept submissions by mail.
U.S. Citizenship and Immigration Services (USCIS): As a fee-funded agency, USCIS would continue to process applications and petitions for immigration benefits, but processing delays could occur if adjudication of a case is dependent on support from government functions that are suspended – for example, a clearance from an agency that is affected by the shutdown. Appointments at USCIS local offices and Application Support Centers should not be affected by the shutdown. Because DOL LCA operations would be suspended, employers planning H-1B, E-3 or H-1B1 extensions or changes of employer – for which a DOL-certified LCA is required – may be unable to file if they do not already have an LCA in hand.
Department of State: The State Department's visa processing and U.S. citizenship document functions would not be suspended as long as filing fees remain available to fund consular operations. However, some passport offices may be affected if they are located in federal buildings that are closed due to the shutdown. If a shutdown is lengthy and fee funding is depleted, the agency could suspend visa processing or limit it to emergency cases only.
Customs and Border Protection (CBP): Inspection functions at U.S. borders and ports of entry would remain in operation. CBP would likely continue to process immigration applications at the border, such as applications for initial TN or blanket L status submitted by Canadian nationals.
Immigration and Customs Enforcement (ICE): ICE enforcement activities and operations of the Student and Exchange Visitor Information System (SEVIS) would continue.
E-Verify: Congressional authorization for E-Verify will expire if no legislation is passed. Employers would not be able to initiate E-Verify queries or resolve tentative non-confirmations, and would not be expected to meet the usual E-Verify deadlines until the program is reauthorized. However, employers must not take any adverse action against an employee whose employment eligibility verification cannot be confirmed in E-Verify due to a shutdown. All employers remain subject to Form I-9 obligations and deadlines as usual. USCIS has previously indicated that qualifying employers will be permitted to use the alternate document review process for remote I-9 document verification in the event that E-Verify is temporarily unavailable.
Conrad 30 Program: Congressional authorization for the Conrad 30 program will also expire without legislation by December 20.
SAVE System: SAVE is the USCIS database used by government agencies – including state motor vehicle departments – to verify an applicant's immigration status when processing applications for benefits. SAVE would remain in operation during a shutdown.
EB-4 Non-minister religious worker program: The employment-based fourth preference immigrant visa category for non-minister religious workers will become unavailable if legislation fails to extend the category beyond December 20. If the program expires, the government will not be permitted to approve applications under the category until the program is revived.
What employers should do now
Employers should contact their Fragomen professional to discuss the impact of the shutdown on their immigration programs and anticipated DOL filings.
Fragomen is closely following the stopgap bill debate and will issue further client alerts as developments occur.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
