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Many government entities to potentially cease operations due to lapse in appropriations
If Congress fails to pass the spending bills required to fund the government by September 30, 2023, a temporary shutdown of the U.S. government will go into effect on October 1, 2023, which may impact the efficiency and functioning of various agencies, potentially leading to immigration petition and application processing delays.
If the government shuts down, many government entities, including the U.S. Department of Labor (DOL), are expected to cease operations due to insufficient funding appropriations. Essential personnel will continue to work, while others will be placed on furlough. Agencies that rely on user fees for funding may encounter restrictions, but they should generally continue operating to some extent. Those reliant on congressional appropriations might close all but critical functions.
On September 22, 2023, the U.S. Department of Homeland Security (DHS) released its procedures for handling a lapse in appropriations. Specifically, DHS accounts for what activities are considered essential. The DHS guidance on a lapse in appropriations, titled “Procedures Relating to a Lapse in Appropriations,” can be found on the DHS website.
1. U.S. Citizenship and Immigration Services (USCIS)
Throughout past government shutdowns, USCIS has largely continued to operate as normal. USCIS should continue to process applications and, typically, there is no impact on adjudications or operations. USCIS is a fee-generating agency that does not rely on government funding. However, USCIS fee-based applications may suffer delays since other government agencies affected by the shutdown, such as the DOL, will be unable to act on various immigration processes (more on the DOL later).
While it will be largely status quo with USCIS, there are a few programs that receive government appropriated funds which may be impacted through suspension or expiration of operations, specifically:
- The internet-based system that allows businesses to determine the eligibility of their employees to work in the United States may be impacted by the impending government shutdown. Employers will not be penalized as a result of the E-Verify operations shutdown and should not face penalties for any delays in creating E-Verify cases. Employers may continue to use the new alternate document review process for remote Form I-9 document verification.
EB-5 Immigrant Investor Regional Center Program
- This program should not be impacted during shutdown as it was authorized through September 30, 2027 as part of the EB-5 Reform and Integrity Act of 2022.
Conrad 30 J-1 Visa Waiver Program for Physicians
- This program allows J-1 doctors to apply for a waiver of the two-year residence requirement after completing the J-1 exchange visitor program. The expiration may only affect the date by which the J-1 doctor must have entered the United States; it is not a shutdown of the Conrad 30 program entirely.
Non-Minister Religious Workers Program
- This special immigrant category allows non-ministers in religious vocations and occupations to immigrate or adjust status in the United States to perform religious work in a full-time, compensated position.
Historically, when the government reopened after a shutdown, USCIS accepted I-129 filings even if they were submitted late, as long as the petitioner provided evidence that the primary reason for the delay in filing an extension of stay or change of status request was due to the government shutdown. As a general guideline, it’s advisable to apply as early as possible given the circumstances.
2. U.S. Department of Labor
The DOL’s Office of Foreign Labor Certification (OFLC) has confirmed that if the federal government shuts down, OFLC will have to disable the Foreign Labor Application Gateway (FLAG) system and will not be able to accept any applications during this period. This means that users will not be able to access the FLAG system to print out any previously approved applications—no Labor Condition Applications, no prevailing wage determinations, no Permanent Labor Certifications (PERMs) and no way to track already filed cases through the online system. Delays with H1-B visa applications and employment green card processing should therefore be expected.
Examples of processes that will be impacted:
- H-1B and H-1B1 visa applications
- PERM process applications
- Prevailing wage determinations
- E-3 applications
A common past result of the suspensions of processes has been additions to the ever-growing backlogs and longer processing times after the restoration of government operations.
3. U.S. Department of State
Consular operations can be impacted if there are insufficient fees to support operations at a particular post. In such a case, posts will generally only handle diplomatic visas and “life or death” emergencies. Visa issuance and passport operations are fee-funded and, therefore, should not normally be impacted by a lapse in appropriations.
During an extended shutdown, there’s a possibility that non-essential services may be temporarily halted. In such a scenario, business and employment visas may not be processed, and visa application appointments that are pending could be subject to cancellation or rescheduling.
4. U.S. Customs & Border Protection (CBP)
All border entry points remain open and operational with CBP continuing to process Canadian nonimmigrant petitions like TN and L-1 visa applications at the border. Inspection and law enforcement personnel are considered “essential.” In the event that the shutdown begins to impact these petitions, employers may wish to explore the option of submitting petitions to the USCIS service centers as an alternative to utilizing border petitions.
In December 2018 and January 2019, CBP was not accepting Form I-192 applications for Advance Permission to Enter as a Nonimmigrant for T or U visa applicants or inadmissible nonimmigrant waiver candidates.
5. Immigration and Customs Enforcement (ICE)
ICE enforcement and removal operations will continue, and ICE attorneys will typically focus on the detained docket during a shutdown. The ICE Student and Exchange Visitor Program (SEVP) offices are unaffected since SEVP is funded by fees.
6. Executive Office for Immigration Review
Immigration court cases on the detained docket will proceed during a lapse in congressional appropriations while non-detained docket cases will be reset for a later date when funding resumes. Courts with only non-detained dockets will close and will not accept filings. Courts should issue an updated notice of hearing to respondents or representatives of record for reset hearings.
7. Department of Homeland Security Office of the Citizenship and Immigration Services (CIS) Ombudsman
The Department of Homeland Security Office of the CIS Ombudsman will close and will not accept any inquiries through its online case intake system.