Government shutdown would halt some immigration services

The federal government will enter a government shutdown if Congress cannot agree on an appropriations bill or short-term spending measure by the end of the day on Friday, Nov. 17.

While many immigration services are funded by filing fees and may not be directly affected, some would come to a halt, including immigration functions at the Department of Labor. Lawmakers averted a shutdown on Sept. 30, passing a continuing resolution to continue funding the government for 45 days. They must now pass another bill to keep government open.

Key Points:

• Department of Labor: In the event of a government shutdown, the DOL would suspend operation of its immigration functions. The department’s Office of Foreign Labor Certification would stop accepting and processing immigration-related applications, including PERM applications, labor condition applications, applications for prevailing wage determinations and temporary employment certifications.
• U.S. Citizenship and Immigration Services: USCIS would continue processing visas, but delays should be expected, particularly if the shutdown is prolonged. USCIS petitions requiring action by the DOL would be directly affected. Employers would be unable to file labor condition applications, which are a prerequisite to H-1B, H-1B1 and E-3 filings, including extensions of status and changes of employers in those categories. USCIS would continue to accept and process other immigrant and nonimmigrant petitions, including adjustment of status (green card) applications.
• State Department: The State Department would continue processing visas and passports, so long as funds are available. If other government agencies and offices that support consular processing are unable to maintain operations at any time during a shutdown, visa and passport processing could be impacted.
• Immigration and Customs Enforcement: ICE would continue to operate. ICE’s Student and Exchange Visitor Information System (SEVIS) would continue its normal operations.
• Customs and Border Protection: CBP ports of entry would continue to operate. However, foreign nationals could experience delays.

E-Verify and other programs. A number of programs would be unavailable until they are reauthorized by Congress, including E-Verify. In the event of a shutdown, employers would be unable to enroll in E-Verify, access or create E-Verify cases or resolve tentative non-confirmations. Employers would not be penalized for shutdown-related delays in E-Verify but would still be required to follow Form I-9 obligations and complete E-Verify cases when the system becomes available. Other programs that would be unavailable until they are reauthorized include the Conrad 30 waiver for J-1 physicians and the Special Immigrant Religious Workers program.

BAL Analysis: A government shutdown would have a significant effect on a number of immigration services, particularly those at the Department of Labor. While it remains possible that Congress could pass an appropriations bill or stopgap spending measure before Nov. 17, employers may wish to work with BAL to submit time-sensitive DOL filings before that date. BAL will continue following events in Washington, D.C., and will provide updates as information becomes available.

This alert has been provided by the BAL U.S. Practice Group.

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