While we are hopeful that this is not the case, it appears that the chances of the U.S. federal government shutting down on October 1st (the beginning of the new fiscal year) are increasing. We would like to provide some information as to how a possible government shutdown would affect the immigration cases pending or to be filed shortly. Our office has been receiving an increasing number of inquiries from alarmed clients as to what would happen should the federal government close on October 1 if a deal is not reached on the federal government’s budget. (See latest Google News)
How Would a Government Shutdown Affect Immigration Cases?
There is no simple answer to this question, as some federal government agencies would continue to operate, some would close partially and some would close almost completely. Since the last time this kind of shutdown happened just a couple of years ago (in 2013), we can look back at what happened then to anticipate what kind of services and agencies would remain open and what would close. With respect to immigration, it appears that there would be some disruptions to pending cases and upcoming filings. Generally, the government is likely to stop all non-essential, all non-self-funded and all non-contractually funded services.
Since USCIS is funded primarily through application fees, it is expected that most of its services and centers would operate normally, perhaps with slightly diminished staff. Because USCIS is a government agency which relies on other government agencies to perform its services, there may be certain disruptions; however, overall, case processing at USCIS is expected to resume. Border processing of immigrants and border enforcement activities would continue as they are deemed “essential.” The E-Verify system is likely to be shut down and unavailable during a period of government shutdown but employers should still continue to process Form I-9s even if E-Verify is not operational.
Department of State – Visa Applications at Consulates and at NVC Should Continue
If the 2013 Shutdown is a guide, the Department of State (DOS) is expected to continue processing visa applications at a normal (or close to it) page. It may still be prudent to try to avoid applying during a period of shutdown and perhaps expedite applications, if possible.
Cases processed at the National Visa Center (NVC) should not be affected as well by the shutdown as they are mainly processed by contractors under existing funding agreement.
Generally, the State Department has been designated to be a “national security agency” which means that it would continue working throughout the shutdown. However, in the cases where State Department operations are in other federal buildings which are affected by the closure, such State Department operations may be disrupted because of lack of access to the facility.
Department of Labor – LCA, PERM and Audits
Unlike USCIS and the State Department, the Department of Labor (DOL) is likely to be significantly affected by the (possible) shutdown and its LCA/PERM operations (and websites) are likely to be suspended for the duration of the shutdown.
Based on what happened during the 2013 Shutdown, in case of a shutdown, no new LCAs can be filed and pending LCAs will not be subject to the seven business day review requirement and will not be reviewed and certified until DOL reopens. This is a significant problem for employers and employees who need to have a new LCA filed and approved in connection with an expiring H-1B petition or in connection with an H-1B amendment. Without a certified LCA, an H-1B petition with USCIS cannot be filed. This can create significant challenge to many employers and individuals whose H-1B petitions must be filed or amended and especially for those individuals whose status may be expiring. In the past and in exceptional circumstances, USCIS has agreed to accept H-1B petitions without a certified LCA; however, USCIS has not yet confirmed (as of the time of this article) that they would do so this time around.
Similarly, in an event of a shutdown, it will not be possible to file new PERM cases and pending PERM cases will be put on hold. This also can be a significant problem to many because the PERM process has very strict deadlines and a PERM case (and its entire recruitment) may have to be redone if a PERM application cannot be filed within the applicable filing window. Additionally, filing a PERM by a certain date is critical for many H-1B workers who are seeking to be able to continue extending their H-1B petitions beyond their six-year H-1B limit. A delay in filing a PERM may cause certain H-1B workers to run out of H-1B time without an ability to continue extending H-1B on the basis of a PERM pending for more than 365 days.
On a related note, prevailing wage determination requests will also be shut down so no new requests can be filed and pending requests will be on hold. A delay in the issuance of a prevailing wage determination may affect a number of PERM cases where there is a timing concern – such as six-year H-1B limit or expiring PERM recruitment.
Shutdown in DOL would mean that processing times and backlogs would be significant once the Government and DOL reopen. If there is a shutdown, even after DOL reopens we expect that there will be a rush of LCA, prevailing wage and PERM filings. Similarly, the cases already pending will have to be prioritized and reviewed. This is likely to contribute to a delay in getting LCAs, prevailing wage requests and PERMs certified (especially since the PERM processing times are substantial already).
At this time, a week before October 1st, it is not clear whether there will be a shutdown. Also, it is not clear what may be the full extent of the federal government shutdown. But if a shutdown occurs, we anticipate some significant disruptions to government services affecting immigrants. Perhaps the biggest disruption would be the delays or inability to file H-1B and/or PERM labor certifications. While some of these affected cases would be able to withstand delay, there would be a number of urgent visa or petition cases which would need to be filed or processed. The shutdown would also create a significant increase in the processing time backlogs for almost all immigration cases. We urge clients who have time-sensitive cases which may be affected by a possible government shutdown to plan accordingly.
We stand ready to help analyze any cases which are time-sensitive and may suffer severe negative impact by the shutdown. Please feel free to contact us. Our office would also continue to monitor developments and provide timely updates. Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.