How A Potential Government Shutdown Would Impact The U.S. Immigration Processes

With a potential federal government shutdown on the horizon, here is an outline of the impact this would have on U.S. immigration cases, particularly immigration processes handled by the Department of Labor (DOL).

United States Citizenship and Immigration Services (USCIS) is primarily funded by application fees, so its operations will generally continue with minimal disruption. However, certain USCIS functions that rely on congressional appropriations, such as the E-Verify system, will likely be suspended.

DOL Immigration-Related Operations Will Largely Cease

Based on prior experience during shutdowns, the DOL's Office of Foreign Labor Certification (OFLC) will not be operational during a shutdown. The OFLC will cease processing all applications in the event of a government shutdown, and personnel would not be available to respond to email or other inquiries. DOL's websites, including the Foreign Labor Application Gateway (FLAG) system, would be deactivated. Board of Alien Labor Certification Appeals and DOL administrative law judge dockets would be placed on hold. However, OFLC confirmed that USCIS should still be able to access data that was uploaded from FLAG into the Validation Instrument for Business Enterprises tool, aka VIBE, before the shutdown to continue adjudicating certain I-129 H-2 and I-140 permanent labor certification (PERM)-based petitions.

Expected Delays

This will cause delays on the following applications and processes:

PERM Cases

Processing of all PERM cases will halt, and users will be unable to file new cases, possibly impacting green card timelines.

Prevailing Wage Requests

All prevailing wage requests will also stop being processed. This is a key first step for PERM, so delays here may also impact green card timelines.

H-1B/H-1B1/E-3 Transfers and Filings

These visa categories generally require a certified labor condition application (LCA) from the DOL. If a shutdown occurs, the DOL will not process LCAs. Therefore, H-1B/H-1B1 or E-3 filings may be unable to be filed with USCIS or the Department of State until the DOL resumes operations and certifies the LCA. During prior shutdowns, lawyers have advocated for USCIS to accept filings without certified LCAs, generally without success. However, in the past, when the government reopened, USCIS has accepted late I-129 filings provided the petition was submitted with evidence that the primary reason for failing to timely file an extension of stay or change of status request was the government shutdown.

Other Agency Operations

Customs and Border Patrol and the Department of State are considered essential agencies and should generally remain open. Nevertheless, be aware of possible staffing shortages and longer wait times at ports of entry, especially if a shutdown is prolonged. This is something to be mindful of if any employees contemplate international travel in in the next few weeks.

Recommendations and Considerations

Backlogs

Be prepared for backlogs in DOL processing once the government reopens. The time it takes to clear these will vary depending on the length of the shutdown.

Travel Advisory

We recommend foreign national employees postpone any nonessential international travel that requires a new visa stamp for reentry.

For More Information

If you have any questions about this Alert, please contact Ted J. Chiappari, Lisa Spiegel, Lauren Aucoin, Kristopher Peters, any of the attorneys in our Immigration Law Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.