Please note: After a record-long shutdown, Congress agreed to, and President Trump signed, a short-term spending bill on Nov. 12 that will keep the federal government fully funded until Jan. 30. Another full or partial shutdown is possible after that date if no additional bills are passed. The attorneys at Garfinkel Immigration Law Firm continue to monitor the situation and any lingering effects on U.S. immigration agencies. We will notify impacted clients as developments occur. Below is further information about a shutdown’s effect on U.S. immigration agencies.
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 a shutdown can create disruptions in the immigration process:
United States Citizenship and Immigration Services (USCIS)
USCIS is primarily funded through application fees. Therefore, the agency remains 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 is also 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 usually ceases operations during a government shutdown.
However, the DOL announced Oct. 31 that the Foreign Labor Application Gateway (FLAG) had resumed processing applications despite the ongoing government shutdown.
New Permanent Labor Certifications (PERM), Prevailing Wage Requests, and Labor Condition Applications (LCA) can now be submitted, and previously approved or pending applications can be accessed and/or downloaded.
Department of State (DOS)
The Department of State is also primarily fee funded and typically continues 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 do 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.
However, USCIS announced Oct. 9 that E-Verify had resumed operations despite the continuing government shutdown.
The announcement said that employers must create an E-Verify case by Oct. 14 for each employee who was hired while the system was unavailable, and that they “must use the hire date from the employee’s Form I-9 when creating the E-Verify case.”
Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP)
Most aspects of ICE and CBP are considered “essential” and continue to operate during a shutdown.
While most ports of entry remain open, a shutdown could have some effect on any application filed at those locations. The Student and Exchange Visitor Program (SEVP) also continues standard operations, as the organization is fee funded.
Other information to know about the government shutdown
The staff at Garfinkel Immigration Law Firm worked proactively to file as many applications as possible before the shutdown. The Firm continued to prepare impacted applications in order to ensure they were ready for filing as soon as the applicable agency resumed normal operations.
Note: This story was originally published on Oct. 1 and last updated on Nov.13.