United States: Preparing for a Potential Federal Government Shutdown on October 1

Should a shutdown occur on October 1, the following is the expected impact on immigration operations, based on prior shutdowns in previous years.

Department of Labor (DOL): DOL immigration functions would likely be suspended as non-essential functions. No PERM or temporary labor certification applications, labor condition applications (LCAs), or prevailing wage requests would be processed. The FLAG online application system, as well as other DOL 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. Employers with time-sensitive labor condition applications or PERM applications should make efforts to file them before October 1 to place them in queue in the event of a shutdown, though they would not be processed until DOL operations resumed. Employers should access the FLAG system before October 1 if they may need copies of certified applications or other information during a possible cessation of DOL operations.

U.S. Citizenship and Immigration Services (USCIS): As a fee-funded agency, USCIS would generally be expected to continue processing applications and petitions for immigration benefits.  The Department of Homeland Security’s shutdown operation plan, last updated on September 27, confirms that all but a small percentage of USCIS employees would remain working if federal funding lapses on October 1. Nevertheless, USCIS processing delays could occur if adjudication of a case is dependent on support from government functions that are suspended – for example, a clearance from an agency that is affected by the shutdown. Appointments at USCIS local offices and Application Support Centers should not be affected by a shutdown. Because DOL LCA operations would be suspended, employers planning H-1B, E-3, or H-1B1 extensions or changes of employer – for which a DOL-certified LCA is required – may be unable to file if they do not already have an LCA in hand before October 1.

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 domestic passport offices could be affected if they are located in federal buildings that are closed due to the shutdown. If a shutdown is lengthy and fee funding is depleted, the agency could suspend visa processing or limit it to emergency cases only.

Customs and Border Protection (CBP): Inspection functions at U.S. borders and ports of entry would remain in operation. CBP would likely continue to process immigration applications at the border, such as applications for TN or initial blanket L status submitted by Canadian nationals.

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 would 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. During a shutdown, employers remain subject to Form I-9 obligations and deadlines as usual.

Conrad 30 Program: Congressional authorization for the Conrad 30 program would 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 is expected to remain in operation during a shutdown.

EB-4 non-minister religious worker program: The employment-based fourth preference immigrant visa category for non-minister religious workers would become unavailable if legislation fails to extend the category beyond September 30. If the program expires, the government would not be permitted to approve applications under the category until the program is revived.

Over the next several days, Congress will be working to reach agreement on an appropriations bill or on a stopgap spending measure to avoid a partial government shutdown. Fragomen is following the budget debate closely and will issue further client alerts as developments occur.