United States: FY 2025 Budget Impasse Could Lead to Federal Shutdown, Though Some Immigration Processing Would Continue
September 19, 2024
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At a glance
- If appropriations legislation or a stopgap spending bill is not passed by Congress by September 30, 2024, the federal government will enter a partial shutdown on October 1.
- A shutdown would mean that fee-based immigration processing – including USCIS benefit and State Department visa and citizenship document processing – will continue. However, the USCIS E-Verify, EB-4 non-minister religious worker program, and Conrad 30 program 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 2025 budget.
- A shutdown is not inevitable, but employers and foreign nationals should be prepared for the possibility.
The issue
As FY 2025 federal budget discussions continue, U.S. government funding could expire after midnight on September 30, 2024 if Congress fails to pass legislation to avoid a government shutdown. In the event of a shutdown, some immigration processes would be suspended, while several others should be unaffected, though processing delays could occur if the shutdown is lengthy.
A shutdown is by no means certain. Congress is actively negotiating stopgap measures to provide short-term funding to keep the government open while the FY 2025 budget is debated. It has become a common Congressional practice in recent years to enact one or more successive stop-gap measures to keep the government open while full budget negotiations continue. The most recent government shutdown occurred in late December 2018 and lasted for 35 days.
A closer look
Should a 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 requests (PWRs), or applications for temporary labor certification would be processed. Online application systems would be taken offline and 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 could occur if adjudication of a case is 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.
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.
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): 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 in the system, 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.
EB-4 Non-minister religious worker program: The employment-based fourth preference immigrant visa category for non-minister religious workers will become unavailable if legislation fails to extend the category beyond September 30, 2024. If the program expires, the government will not be permitted to approve applications under the category until the program is revived.
What employers should do now
Though a federal agency shutdown could be averted, employers may want to discuss with their immigration counsel whether to submit time-sensitive DOL applications – such as prevailing wage requests and PERM applications for foreign nationals approaching their nonimmigrant maximum periods of stay – by September 30.
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.
