United States: How A Government Shutdown Would Affect Immigration Processing

On November 17, the continuing resolution (CR) that was passed by Congress at the end of September will expire and, once again, the U.S. government will be faced with the prospect of a shutdown starting November 18. Should the government shutdown occur, all government personnel except those deemed essential would not be allowed to work.

A shutdown will affect government agencies that are responsible for immigration. The Department of Homeland Security (DHS) has stated that three-fourths of DHS employees – more than 185,000 – would be required to continue working through a shutdown, without receiving a paycheck.

Below is a summary of these potential impacts on specific agencies:

USCIS: As a fee-funded agency, most USCIS operations should not be affected by any shutdown. The only exceptions are programs that are funded through appropriations including E-Verify and some non-employment-based visa categories. The EB-5 Immigrant Investor Regional Center Program should not be affected as it has been re-authorized through September 30, 2027.

If E-Verify were to be disabled during the shutdown, employers would not be able to initiate, resolve, or meet relevant deadlines in the system. However, employers would still continue to be responsible for their I-9 verification obligations to verify I-9 documents through in-person inspection or through USCIS's new alternative verification process.

Department of Labor (DOL): As DOL is not a fee-funded agency, a shutdown would significantly affect the processing of Labor Condition Applications (LCA), Prevailing Wage Determinations (PWD), and PERM Labor Certification Applications. DOL has confirmed that in the event of a shutdown, the Office of Foreign Labor Certification (OFLC) would close, and the Foreign Labor Application Gateway (FLAG) and the LCA, PWD, and PERM systems would be disabled. Employers would not be permitted to file new applications throughout the shutdown, nor would employers or attorneys be allowed to access the system to review or print previously approved applications.

Petitions that require a Labor Condition Application, such as H-1B, H-1B1, and E-3 visas, are encouraged to file before 11:59 p.m. on November 17. The OFLC's prior guidance indicated that applications filed within the week of a potential government shutdown may have sufficient time to be processed, although there is no guarantee. Any pending PWD requests or PERM applications would experience significant processing delays as the DOL will not process these applications during the shutdown, and which would just add to the already lengthy backlogs and adjudication times. In addition, the Board of Alien Labor Certification Appeals (BALCA) would place its docket on hold. OFLC also indicated that if a government shutdown does occur, they may issue further guidance on granting flexibilities for those cases with filing deadlines.

Department of State (DOS): DOS's visa and passport operations are fee-funded and are at minor risk of being affected by a shutdown. However, consular operations could be affected if certain posts have insufficient fees to maintain their operations, with the exception of emergency situations. In the event of a shutdown, non-emergency services, such as visa application appointments, could be canceled if a shutdown is prolonged and leads to backlogs.

Customs and Border Patrol (CBP): This is deemed an essential service and so ports of entry (POE) will remain open. However, filing applications at the POE, which are done by applicants for TN visas, may be affected.

Immigration and Customs Enforcement (ICE): This is deemed an essential service and ICE will continue its operations without further impact. The ICE Student and Exchange Visitor Program (SEVP) offices are unaffected since SEVP is funded by fees.

Executive Office of Immigration Review (EOIR): During previous shutdowns, courts would only work through cases of those in immigration detention while non-detained docket cases would be reset for a later date once the shutdown ends and funding resumes. Immigration courts would postpone hearings on cases for those who are not detained. Courts with detained dockets would receive filings but would only process those involving detained dockets. Courts with only non-detained dockets would not be open and would not accept filings. It is unclear whether filings would continue to be accepted through EOIR's electronic system (ECAS). Also, the EOIR has not yet issued guidance about credible fear cases or Family Expedited Removal Management (FERM) program, however, it is anticipated that these cases would be considered essential and would likely continue during the shutdown.

CIS Ombudsman: The Office of the CIS Ombudsman would close and would not accept any inquiries through its online case intake system.

Fakhoury Global Immigration (FGI) will monitor and update readers on key immigration-related developments in the event of a government shutdown. For more information, please contact (+1) 248-643-4900 or info@employmentimmigration.com.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.