The United States federal government was forced to shut down at 12:01 ET on Oct. 1 after Congress was unable to agree on the required spending bills before government funding expired on Sept. 30.
In general, a government shut down occurs when Congress fails to pass appropriations bills or a continuing resolution to fund federal government operations. Without funding, non-essential federal government functions cease, including various federal agencies (or aspects of them) that are responsible for processing certain immigration benefits and applications.
Here is a breakdown of how the shutdown can create disruptions in the immigration process and what to expect until Congress agrees on funding:
United States Citizenship and Immigration Services (USCIS)
USCIS is primarily funded through application fees. Therefore, the agency will remain open if a shutdown occurs.
During a shutdown, USCIS will continue to accept and adjudicate most applications. However, processing delays may arise from reduced staffing at USCIS or in applications that require interagency involvement (such as the Department of Labor).
The H-1B visa program will also be partially affected by the shutdown since the Labor Condition Application (LCA), which must be certified before filing an H-1B petition with USCIS, relies on operations at the Department of Labor (DOL), as further detailed below.
Department of Labor (DOL)
The Department of Labor is not considered "essential," nor is it primarily funded by application fees. Consequently, the DOL ceases operations during a government shutdown.
The DOL will not process any applications, including Permanent Labor Certifications (PERM), Prevailing Wage Requests, or Labor Condition Applications (LCA). The DOL's Office of Foreign Labor Certification (OFLC) website as well as the Foreign Labor Application Gateway (FLAG) will also be disabled, meaning previously-approved or pending applications cannot be accessed or downloaded.
Historically, the OFLC issued guidance about flexibilities for employers with filing deadlines during a shutdown.
Department of State (DOS)
The Department of State is also primarily fee funded and will typically continue to process and issue visas and passports during a shutdown.
However, specific embassies and consulates may be impacted if they do not generate enough revenue from application fees to continue to operate during a shutdown. In that case, the specific embassy or consulate will significantly scale back operations.
Conrad 30 and Non-Minister Religious Workers
The Conrad 30 J-1 Waiver Program and the Non-Minister Religious Worker Program expired with the government funding and they will not resume until Congress passes a funding bill or a specific reauthorization.
These programs are directly linked to legislative action and, as such, a shutdown delays the passage of necessary legislation to extend these programs. New applications cannot be accepted in these programs until reauthorization occurs. Any applications already in process may face delays.
E-Verify
E-Verify typically goes offline during a government shutdown as it is funded through appropriated funds. Employers cannot enroll in E-Verify, verify employment eligibility, or access records, which may delay hiring processes for companies that rely on the system.
Usually, employers are granted an extension for submitting cases and resolving tentative non-confirmations that arise during a shutdown. However, employers are still required to complete the Form I-9 within the mandated timeframes for new hires, even if E-Verify is unavailable.
Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP)
Most aspects of ICE and CBP are considered "essential" and will continue to operate during a shutdown.
While most ports of entry will remain open, a shutdown could have some effect on any application filed at those locations. The Student and Exchange Visitor Program (SEVP) will also continue standard operations, as the organization is fee funded.
Other information to know about the government shutdown
The staff at Garfinkel Immigration Law Firm has worked proactively to file as many applications as possible before the shutdown. The Firm will continue to prepare impacted applications in order to ensure they are ready for filing as soon as the applicable agency resumes normal operations.
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.
