The implications for foreign national workers and their employers during the federal government shutdown vary depending on the type of government service needed. Although the various immigration–related government agencies have not yet announced how they will operate during the shutdown, below is an overview of how various immigration services may be impacted based on how these agencies have operated during prior shutdown periods:
Filings of petitions to extend or change status, change employers, or request another immigration benefit within the U.S.
Petitions to extend or change nonimmigrant status, apply for permanent residence (i.e. file an Adjustment of Status application), or request another immigration benefit while the employee is inside the U.S., generally will not be impacted by the government shutdown. U.S. Citizenship and Immigration Services ("USCIS"), the agency that administers immigration benefits within the U.S., is primarily funded by user fees, rather than federal government budgets, and therefore its general operations will continue. A few limited programs that are funded by Congress may be impacted by a government shutdown (for example, certain programs for EB-5 investors, J-1 doctors, and non-minister religious workers).
Applicants should attend interviews and appointments at USCIS local offices and Application Support Centers (ASCs) as usual.
However, USCIS processing delays could occur if adjudication of a case is dependent on support from government functions that are suspended. Most significantly, it may not be possible to file petitions that require a certified Labor Condition Application (LCA) – such as H-1B, E-3, or H-1B1 petitions – if an LCA has not yet been certified, because, as noted below, the Department of Labor's LCA operations will be suspended.
E-Verify – the web-based system used to confirm the employment eligibility of workers in the U.S. and operated by USCIS – is funded by Congress and in the past has been unavailable during a government shutdown. Employers may continue to use the alternate review process for remote I-9 document verification if E-Verify is temporarily unavailable due to a government shutdown.
Applications for visas at U.S. consular posts worldwide
The U.S. Department of State ("DOS") administers the issuance of visas to the U.S. through U.S. embassies and consular offices around the world. Visa operations are also fee-funded and therefore, the operations of consular posts – including the issuance of visas – is not normally impacted by a lapse in government funding. Consular services therefore are expected to continue operating, although there may be delays or limited availability of visa processing if there are insufficient fees to support operations at a particular post.
Entry to U.S. through airports and land ports-of-entry
Ports of entry to the U.S. will remain open because inspection and law enforcement personnel, which fall under the U.S. Customs and Border Protection (CBP) agency, are considered "essential." Processing of passengers to the U.S. is expected to continue, although there may be delays due to limited staffing. Processing of applications filed at the border (such as TN visa applications for Canadian nationals) may be impacted.
Labor Condition Applications (LCAs) and "PERM" Processing
Likely the biggest impact for U.S. employers would be at the U.S. Department of Labor (DOL), which will cease operations during a government shutdown, as it is funded by Congress and not considered "essential." The DOL processes Labor Condition Applications (LCAs), which must accompany certain USCIS filings such as H-1B, E-3, and H-1B1 petitions. If an employer does not have a certified LCA in hand, they will be unable to file one of these petitions with USCIS until the government reopens and an LCA can be submitted and certified.
Permanent Employment Certification applications (aka "PERM") filings will also be impacted, as these are filed with the DOL online. Employers will be unable to file prevailing wage requests and PERM applications or receive prevailing wage determinations and PERM approvals during the shutdown period.
Late filings and missed deadlines as a result of the government shutdown
Following previous government shutdowns, once the government had reopened, USCIS and the DOL made allowances to permit late filings and exercised flexibility with filing deadlines if the failure to timely file was due to extraordinary circumstances outside the control of the applicant, including as a result of a government shutdown. We anticipate similar flexibility during this shutdown period.
Partner Dina Weinstein was a contributing author to this client alert.
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.
