Pabian Law Clients and Friends,
I hope that you all are having a great week. As Congress has not been able to pass the necessary funding bills in time, the federal government ceased operations as of 12:01AM today. Due to this, it is important that you understand the implications of the shutdown as it relates to immigration. Importantly, many immigration processes will be halted because the U.S. Department of Labor will cease operating and agency personnel from various agencies may be laid off.
We encourage you to watch a recent video that I recorded for Pabian Law's weekly video series on the government shutdown. It is only 2 minutes in length and provides helpful information.
Background on the Shutdown
Congress had until midnight yesterday, September 30th, to come to a budgetary resolution or pass a Continuing Resolution (CR) to temporarily fund the government while final appropriations were approved. Due to the failure to reach an agreement, the government has shut down.
Historically, there have been twenty-one (21) total U.S. government shutdowns, with the longest lasting thirty-five (35) days during President Trump's first term. For the shutdown to end, both political parties must agree to pass a funding bill that covers all necessary federal appropriations. Currently, based on the minimal compromise occurring and the high unlikelihood of a quick resolution, a long-term shutdown is possible. Also, the Administration has threatened mass layoffs to force compromise. These mass layoffs primarily threaten the Department of State and will ultimately affect the efficiency of immigration processing.
What Agencies involved in Immigration Processes will be Affected?
Many agencies will slow or cease operations due to the shutdown. The main agencies involved in the various immigration processes are the U.S. Department of Labor, the U.S. Department of State, U.S. Citizenship and Immigration Services, U.S. Immigration and Customers Enforcement, and U.S. Customs and Border Patrol:
- U.S. Department of Labor (DOL): The DOL will freeze operations and stop processing and accepting all applications. The DOL's Foreign Labor Application Gateway (FLAG) online filing system will be deactivated during the shutdown.
- U.S. Department of State (DOS): Consular and visa and passport operations should not be impacted since the DOS is a fee-based agency. However, if the shutdown persists and fees become insufficient, there could eventually be a slowdown or shutdown. If layoffs occur, delays in processing times can be expected.
- U.S. Citizenship & Immigration Services (USCIS): As a fee-based agency, USCIS will be business as usual.
- U.S. Immigration & Customs Enforcement (ICE): Generally, ICE will remain active, and Enforcement and Removal Operations (ERO) will continue to operate.
- U.S. Customs and Border Patrol (CBP): CBP personnel are considered 'essential' and will continue to operate.
What does this mean for Pabian Law Clients?
At Pabian Law, our clients seek many different immigration benefits. The government shutdown affects these immigration options because many are processed by the DOL or at agencies where personnel could be laid off due to the shutdown. Here is how each visa (and green card) will be implicated by the shutdown:
H-2B Visa
All pending Prevailing Wage Determination (PWD) applications, H-2B applications, and temporary labor certifications will freeze, and no new applications will be accepted for filing with the DOL. Late winter-season and summer-season H-2B employers may be impacted in different ways.
For winter-season employers whose H-2B applications remain pending with the DOL (i.e., we have not yet received the final temporary labor certification), will not be able to file the final H-2B petitions since certifications are needed to file petitions with USCIS. However, petitions with issued certifications can be filed as normal, since USCIS will continue to operate. Additionally, any petitions already pending with USCIS will continue to be processed normally. Finally, late winter-season filers (January and February start dates) may be affected if PWDs and/or H-2B applications still need to be filed with the DOL. For impacted employers, the extent of the impact will be decided by the length of the shutdown.
For summer-season employers, if the shutdown lasts only a week or two, there may be no tangible impact on any applications. However, if it lasts several weeks or more, summer H-2B employers will be affected (April 1st employers would feel the impacts first). Pabian Law typically files PWD requests in late-October, which must be processed by the DOL prior to January 1st, when H-2B applications for April 1st start dates are filed. If the shutdown lasts past late-October, PWD processing will be delayed, with the extent of delays depending on how quickly the government can work through the backlog. If, due to these backlogs, the DOL cannot issue PWDs before January 1st, H-2B applications cannot be filed, and April 1st employers without a PWD will not be eligible for the H-2B cap lottery. It is unclear whether the DOL would issue any special accommodations or revise the lottery process in this case. There is no precedent for such a situation because the last lengthy government shutdown was in 2018 before the DOL instituted the randomized H-2B cap lottery in 2019.
The impact of the shutdown on consulates and embassies is a bit unclear. Although the DOS is fee-funded and so visa applications and interviews should proceed, with the threat of mass layoffs it is possible that consulate operations will experience backlogs and delays. Also, if a shutdown continues and fee reserves are exhausted, consular operations could also slow or suspend, creating disruptions and delays for employees abroad awaiting visas.
Lastly, if the government releases supplemental H-2B visas, any such issuance will be delayed so long as the shutdown continues. As a reminder, supplemental visas (also called "cap relief") provide additional H-2B visas to organizations that demonstrate that they will suffer irreparable harm without the ability to employ the requested H-2B workers. The decision to release supplemental cap relief is at the discretion of the government and there is no guarantee that it will be available each year. However, cap relief cannot happen until Congress agrees on funding bill or a Continuing Resolution (CR) to temporarily fund the government. Although we always advise viewing cap relief as a last resort rather than a primary strategy, any extended shutdown could add further uncertainty to the possibility and timing of cap relief.
J-1 Visa
The J-1 visa program will likely continue as usual unless a prolonged shutdown occurs. The Cultural Exchange Program, overseen by the DOS, processes J-1 visa applications. As the DOS is primarily funded through fees, J-1 visa operations should continue as normal unless fees deplete. However, the J-1 visa could be majorly impacted by mass layoffs if the Administration decides to remove agency personnel from consulates and embassies abroad, as well as within the Cultural Exchange department that oversees the J-1 visa program. The State Department is an agency that the administration has already targeted for mass layoffs, so this is something to watch closely.
TN, O-1, and H-1B Visas
The TN visa program is overseen by USCIS and DOS. Current visa holders in the United States seeking extension, change of status to TN, or change of TN employer, should not be affected as the TN process is overseen by USCIS. However, TN applicants currently in Mexico may experience delays as they are required to attend a consulate appointment to apply for entry. On the other hand, applicants in Canada should not experience delays as they only need to apply at a port of entry into the U.S. where CBP is still operating. Similarly, the O-1 visa program is overseen by USCIS and should not be affected.
Like the H-2B visa program, the H-1B visa is partially overseen by the DOL for the initial phases of the application process. Therefore, unless a Labor Condition Application (LCA) has already been issued, new H-1B petitions cannot be filed during a shutdown. However, if the LCA has already been certified, the petition can be filed and processed with USCIS as normal.
Green Cards
Whether a green card application will be impacted by a government shutdown depends on the type of application and where the application is in the process. Similar to H-2B visas, EB-2 and EB-3 green cards in the early phases of the application process will be impacted because both forms of green card require the DOL to process PWDs and labor certification applications. If an employer has already received the labor certification, the process can proceed with USCIS and will not be affected by the shutdown.
The EB-1 green card is processed solely through USCIS, so this green card should remain unaffected by the shutdown.
What happens now?
Despite the shutdown, we will continue to move forward with preparing visa applications and petitions as much as we can. As the shutdown progresses, we will update you as we hear of agency delays or other impacts to the application process. As always, please do not hesitate to reach out with any questions or concerns.
Thank you,
Keith and the Pabian Law Team
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.
