Law360 (September 22, 2023, 5:16 PM EDT) —
Recent news reports have speculated that Republicans and Democrats might not be able to reach an agreement on annual spending bills or a continuing resolution to keep the government funded after the 2024 fiscal year begins on Oct. 1.
While it is too soon to know whether a shutdown will happen or how long it would last if it does, any threat of a government shutdown raises concerns about the effect on immigration processing through the various federal agencies that oversee different aspects of the process.
The specific plans for determining which agencies would continue to provide services and which would suspend them during previous federal government shutdowns have varied between administrations. The following overview of how a shutdown would likely affect the agencies responsible for immigration matters is based on prior shutdowns and on information from the White House Office of Management and Budget.
Citizenship and Immigration Services
Rather than appropriating taxpayer funds to U.S. Citizenship and Immigration Services, in 1988, Congress established the Immigration Examinations Fee Account, instructing USCIS to recover the full cost of immigration benefits processing through filing fees charged to applicants and petitioners requesting immigration benefits. Therefore, the processing of petitions and applications at USCIS is expected to continue uninterrupted, as the agency is funded by user fees and is not dependent on federal appropriations.
Practitioners preparing immigrant and nonimmigrant petitions and applications for USCIS review, or who are monitoring the status of those already pending with USCIS, should not expect processing delays. Practitioners should be able to continue filing and obtaining those adjudications on behalf of their clients during any shutdown that occurs, subject to the normal USCIS processing times.
Exceptions to this general rule include USCIS filings that must be accompanied by U.S. Department of Labor certifications — such as the labor conditions application, or LCAs, required for H-1B, H-1B1 and E-3 petitions — which would need to be filed without those certifications. Those filings are discussed below. In the past, USCIS has held adjudication until petitioners could obtain the necessary certifications after the potential shutdown ceased.
The Office of the Citizenship and Immigration Services Ombudsman is an independent office under the U.S. Department of Homeland Security, and is not part of USCIS. It serves as a liaison between the public and USCIS by identifying and recommending solutions to issues within the immigration system, resolving specific complaints by petitioners and applicants, and engaging the public to gather data on USCIS experiences. Because it is an independent office funded by congressional allocations, the USCIS ombudsman’s office is generally expected to cease operations, including its online case intake system, during a government shutdown.
Department of Labor
The Office of Foreign Labor Certification, which has oversight over most immigration-related processes filed with the DOL, operates with appropriated funds and is expected to close during any government shutdown. Consequently, the DOL would neither accept nor process any applications or materials relating to LCAs, prevailing wage determinations, temporary employment certifications or applications for permanent employment certification — i.e. the PERM system.
The operational status of the DOL affects the ability to file petitions with USCIS that require a certified LCA, such as requests for H-1B, H-1B1 and E-3 classification. Historically, in instances where it was not possible to obtain a certified LCA, USCIS temporarily created an exemption to the LCA requirement to allow filings that are needed to maintain status.
Additionally, USCIS has historically accepted late I-129 petitions for nonimmigrant workers seeking extensions of stay or a change of status when the petition was submitted with evidence establishing that the primary reason for the failure to timely file was due to a government shutdown.
Similarly, the DOL’s status may affect the structured timing requirements of PERM applications, but historically, the DOL has extended any deadlines that fell during a government shutdown. We anticipate that DOL and USCIS guidance will be forthcoming.
Department of State
The issuance of visas, as well as related consular operations, may continue during the initial stages, but may not remain operational during the entire length of a shutdown.
The U.S. Department of State does maintain reserves of unallocated funding that can be used to allow continued operations during a lapse in appropriations. However, when operating with limited reserve funds, it would prioritize activities that are necessary for national security. The agency has reduced or halted visa issuance during prior shutdowns.
Practitioners advising clients with international travel plans that require them to obtain a new visa stamp while abroad should monitor the situation closely, and should advise clients to consider canceling unnecessary travel plans or risk being unable to return to the U.S. for several months.
Customs and Border Protection
Individuals entering the U.S. with a valid visa should not encounter any issues at airports or land border crossings, and the electronic I-94 retrieval system would be operational.
U.S. Customs and Border Protection is normally treated as providing an essential law enforcement function that is required to continue working during a shutdown. However, individuals who seek to apply for an immigration benefit at a port-of-entry or preclearance facility — such as a nonimmigrant NAFTAhttps://www.law360.com/agencies/nafta Professional (TN) Visa or an L-1 intra-company transfer visa — would need to confirm the operational status of the location at which they intend to apply for the latest information.
Immigration and Customs Enforcement
U.S. Immigration and Customs Enforcement removal and enforcement operations are also considered essential law enforcement functions that are expected to continue operations during a shutdown, even after the organization’s reserve funds are depleted should the lapse in funding continue for an extended period.
ICE also operates the Student and Exchange Visitor Program, used by schools to track the status of international students. The SEVP is funded by fees and is expected to continue operations without being affected by a potential shutdown.
EOIR
The U.S. Department of Justice’s, Executive Office for Immigration Reviewhttps://www.law360.com/agencies/executive-office-for-immigration-review is responsible for conducting immigration court proceedings, appellate reviews and administrative hearings. Historically, during government shutdowns, EOIR continued to hold hearings and adjudicate detained-docket cases as scheduled, to guarantee legal review for those being held in ICE detention centers.
Individuals who have been released from ICE detention centers while their cases are pending or for whom removal has been deferred — also known as nondetained docket cases — would be expected to have their cases delayed until funding is reestablished. In these cases, individuals and their representatives would receive an updated notice of hearing that provides a new hearing date.
Given the severe backlogs at EOIR, these dates may be months or years in the future.
E-Verify
The E-Verify system for electronic employment eligibility verification would be unavailable. As a result, E-Verify employers would need to collect and review documentation for new hires, and complete a Form I-9 manually for any new employee who begins work. The rule that E-Verify must be queried within three days of hire would be suspended, and the time period during which employees may resolve tentative nonconfirmations would also be extended.
Employers would not be permitted to take any adverse action against an employee whose query is in an extended interim case status due to the government shutdown. Once again, the interruption of E-Verify does not affect employers’ Form I-9 obligations to collect and manually review identity and employment authorization documentation at the time of hire.
Once operations resume after the potential shutdown, E-Verify will provide instructions for creating and submitting queries that were delayed during the shutdown.
Conclusion
While a government shutdown would certainly create issues and cause delays in immigration processing, agencies are expected to create reasonable exceptions and provide guidance for navigating immigration operations for affected matters once operations resume.
With careful adherence to such guidance, there should be no scenario in which the potential shutdown results in the loss of benefits or other significant adverse action for foreign nationals residing in the U.S. With that said, if a shutdown continues longer than a few weeks, the ripple effects of delays would compound over time.
Consular appointment wait times and DOL processing times for prevailing wage determinations and PERM certifications have not yet fully recovered from the ongoing effects of the COVID-19 pandemic, and more strain on the system would cause further significant delays.
If the potential shutdown outlasts State Department reserves aimed at keeping visa operations running, it could significantly affect holiday travel, as well as employers that rely on seasonal workers during the winter months, as the strict deadlines for filing H-2A and H-2B petitions for temporary agricultural workers could be bypassed altogether.
It will be critical for practitioners to closely monitor the status of the potential shutdown and guidance from the relevant government agencies, in order to properly advise their clients on what to expect throughout the immigration process as well as the associated risks of international travel.
Please contact your Klasko Law attorney with any questions regarding this article.
The material contained in this article does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
