United States: As Budget Discussions Continue, Partial Government Shutdown Is Possible, Though Some Immigration Processing Would Continue
September 24, 2021
Country / Territory
Share
At a glance
- If FY 2022 spending legislation or a stopgap measure is not passed by Congress by September 30, 2021, the federal government will enter a partial shutdown on October 1.
- Fee-based immigration processing – including USCIS benefit and State Department visa and citizenship document processing – would largely continue, though existing processing delays would likely increase. The USCIS E-Verify and the Conrad 30 programs would expire if Congress fails to extend them.
- Department of Labor immigration functions such as LCA, prevailing wage and PERM processing would be suspended in a shutdown, until Congress passes a stopgap spending measure or a FY 2022 budget.
- The House of Representatives has passed a stopgap spending measure to fund the U.S. government at current levels through December 3, but likelihood of passage in the Senate is not clear.
The issue
As FY 2022 federal budget negotiations continue, U.S. government funding could expire on September 30, 2021 unless Congress passes spending legislation to avoid a partial government shutdown. In the event of a shutdown, some immigration processes would be suspended and several others should be unaffected, though further processing delays could occur.
A shutdown is not certain. The FY 2022 budget and related legislative measures are being actively negotiated, and Congress has the option of enacting short-term funding to keep the government open during these negotiations, as it has done several times in recent years during similar budget discussions. This week, the U.S. House of Representatives passed a stopgap spending measure to fund the federal government at its current levels through December 3. Likelihood of passage in the Senate is unclear, but there is concern among legislators and government officials about the negative impact of even a partial government shutdown during the COVID emergency.
A closer look
Should a partial shutdown occur, the following would be the expected impact on immigration operations based on prior shutdowns in previous years. Fragomen will provide updates on ongoing developments.
Department of Labor (DOL): DOL immigration functions would be likely to be suspended as non-essential functions. No PERM applications, labor condition applications (LCAs), prevailing wage determinations (PWDs) or applications for temporary labor certification would be processed. Online application systems would not accept PERM applications or audit responses, LCAs or prevailing wage requests. The agency would also be unable to accept submissions by mail.
U.S. Citizenship and Immigration Services (USCIS): As a fee-funded agency, USCIS would continue to process applications and petitions for immigration benefits, but processing delays, already widespread within the agency, could worsen for cases dependent on support from government functions that are suspended – for example, a security clearance from an agency that is affected by the shutdown. Appointments at USCIS local offices and Application Support Centers should not be affected by the shutdown, though COVID-19 precautions remain in place.
Department of State: The State Department’s visa processing and U.S. citizenship document functions would not be suspended as long as filing fees remain available to fund consular operations. However, some passport offices may be affected if they are located in federal buildings that are closed due to the shutdown. These functions are already significantly affected by reduced staffing and other effects of the pandemic.
Customs and Border Protection (CBP): Inspection functions at U.S. borders and ports of entry would remain in operation. CBP would continue to process immigration applications at the border.
Immigration and Customs Enforcement: ICE enforcement activities and operations of the Student and Exchange Visitor Information System (SEVIS) would continue.
E-Verify: Congressional authorization for E-Verify will expire if no legislation is passed. Employers would not be able to initiate E-Verify queries or resolve tentative non-confirmations, and would not be expected to meet the usual E-Verify deadlines until the program is reauthorized. However, employers must not take any adverse action against an employee whose employment eligibility verification cannot be confirmed in E-Verify due to a shutdown. All employers remain subject to Form I-9 obligations and deadlines as usual.
Conrad 30 Program: Congressional authorization for the Conrad 30 program will also expire without legislation by September 30.
SAVE System: SAVE is the USCIS database used by government agencies – including state motor vehicle departments – to verify an applicant’s immigration status when processing applications for benefits. SAVE would remain in operation.
This alert is for informational purposes only. If you have any questions about the effect of the shutdown on your organization, please contact the immigration professional with whom you work at Fragomen.
