Immigration – How to Prepare for a Government Shutdown
So far, Congress has not passed any of the spending bills needed to keep the government open beyond September 30, 2023.
Unless these appropriations bills are passed, or Congress agrees on a temporary continuing resolution, funding for agencies will lapse on October 1, 2023, as the result of a government shutdown.
If the government agencies close for budgetary reasons, all but “essential” personnel will be furloughed.
The following is an overview of how immigration-related agencies will operate in the event of a government shutdown.
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Government Shutdown – Immigration Agencies
USCIS
USCIS is a fee-funded agency so if the government shuts down, it is generally business as usual. The exceptions to this are the following programs which receive government funds:
- E-Verify
- EB-5 Immigrant Investor Regional Center Program – See below.
- Conrad 30 J Waivers for Physicians
- Non-Minister Religious Workers
The EB-5 Immigrant Investor Regional Center Program should not be impacted by a shutdown since it has been authorized through September 30, 2027.
The Special Immigrant Religious Worker Program will sunset on September 30, 2023 unless a continuing resolution or appropriations package is signed into law before that date.
USCIS has confirmed that employers may continue to use the new alternate document review process for remote Form I-9 document verification if E-Verify is temporarily unavailable due to a government shutdown.
In the past, when the government reopened, USCIS accepted late I-129 filings provided the petition was submitted with evidence that the primary reason for failing to timely file an extension of stay or change of status request was the government shutdown.
State Department
Visa and passport operations are fee-funded and thus are not normally impacted by a lapse in appropriations. Consular operations can nevertheless be impacted if there are insufficient fees to support operations at a particular U.S. Embassy or Consulate. In such a case, posts will generally only handle diplomatic visas and “life or death” emergencies.
CBP
Inspection and law enforcement personnel are considered “essential.” Ports of entry will be open, and processing of passengers will continue. However, processing of applications filed at the border may be impacted.
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 will be unaffected since SEVP is funded by filing fees.
EOIR
Immigration court cases on the detained docket will proceed despite a lapse in congressional appropriations while non-detained docket cases will be reset for a later date when funding resumes. Courts with detained dockets will receive all filings but will only process those involving detained dockets.
Courts with only non-detained dockets will not be open and will not accept filings. Courts should issue an updated notice of hearing to respondents or representatives of record for reset hearings.
Labor Department
The Office of Foreign Labor Certification (OFLC) would cease processing all applications in the event of a government shutdown, and personnel would not be available to respond to e-mail or other inquiries. OFLC’s web-based systems, FLAG and PERM, would be inaccessible, and BALCA dockets will be placed on hold.
If the federal government shuts down, OFLC will have to disable the FLAG system and will not be able to accept any applications during this period. Additionally, users will not be able to access the FLAG system to print out any previously approved applications.
To the extent that PERM filers with impending deadlines can file now, OFLC recommends that they do so by 11:59 pm (ET) on September 30. Likewise, if an employer will need an Labor Condition Application (LCA), OFLC encourages them to file these immediately.
In the event that there is a shutdown, OFLC is considering issuing guidance about flexibilities for employers with filing deadlines.
CIS Ombudsman
The DHS Office of the CIS Ombudsman would close and would not accept any inquiries through its online case intake system.
We will continue to update you in the event of a government shutdown.
