What is Happening?

The deadline for Congress to pass a new budget to keep funding the federal government agencies is midnight on Saturday, September 30.  The federal agencies responsible for administering the United States immigration process are United States Citizenship and Immigration Services (USCIS), United States Customs and Border Protection (USCBP), Immigration and Customs Enforcement (ICE), the Department of State (DOS) and the Department of Labor (DOL). Every year, these agencies submit their funding requests, which Congress must pass in both the House and the Senate, and the president then signs budget legislation approving the funding for the next fiscal year.

If an agreement is not reached by the start of the fiscal year on October 1, a federal shutdown occurs and funding for all non-essential discretionary agency functions is discontinued. This results in all “non-essential” federal agency personnel being furloughed and not allowed to work starting on Sunday, October 1, 2023.

This year, there is significant disagreement within House Republicans about spending plans and a faction of Republican members of the House is demanding deep cuts and wants to stop further funding of the war in Ukraine. This faction has voted down attempts by the party leadership, headed by Speaker Kevin McCarthy who leads the House, to bring any votes to the floor. As of today, no agreement on a budget has been reached. In the past, when a budget approval deadline is close, lawmakers from both parties have agreed on temporary funding based on the previous year’s requests through a continuing resolution.  This stop-gap measure allows federal agencies to remain open until the annual budget is agreed upon. There is no indication yet that this stop-gap measure will occur this year.

 

What Will USCIS Do if a Shutdown Occurs?

USCIS is the federal agency responsible for adjudicating I-129 nonimmigrant and I-140 immigrant petitions, I-485 adjustment of status and N-400 naturalization applications and many other applications for immigration benefits. USCIS also conducts the Administrative Site Visit and Verification Program (ASVVP) and administers the online E-Verify employment eligibility verification system.

USCIS funds its operations through the fees paid to it by petitioners and applicants for immigration benefits and does not rely solely on government funding. Its operations will thus continue during a federal shutdown and petitions and applications will continue to be processed.  The ASVVP program is also funded by fees paid by petitioners and will not be affected by a shutdown. The E-Verify system will not be available during a shutdown and will not accept queries about an employee’s employment eligibility. The USCIS has confirmed, however, that an “alternate document review process” for remote Form I-9 document verification may be used during a shutdown.

 

What Will USCBP Do if a Shutdown Occurs?

USCBP is the federal law enforcement agency responsible for protecting the United States’ borders. USCBP regulates the inspection and admission of persons and goods into the country. The agency is also entrusted with collecting customs revenue and enforcing import security laws. USCBP port of entry inspection and officers are considered “essential” personnel and will not be furloughed in the event of a shutdown. All international ports of entry, including airports, will remain open, and the inspection and admission of persons seeking entry into the United States will continue. Admission applications at ports of entry and airports may be delayed.

 

What Will ICE Do if a Shutdown Occurs?

ICE is the federal agency that enforces U.S. immigration, customs, and trade laws. ICE detains violators of these laws and conducts criminal investigations.  ICE is also responsible for administering and enforcing the Student and Exchange Visitor Program (SEVP) for F-1 and M-1 students and J-1 nonimmigrants.  The SEVP is funded by fees paid by participants in the program and will continue to operate during a shutdown.  Persons in F-1, M-1, and J-1 status should be able to continue accessing their SEVP records during a shutdown.

 

What Will DOS Do if a Shutdown Occurs?

DOS is the federal agency responsible for managing the United States’ relationships with foreign governments, international organizations, and the citizens of other countries. As far as the immigration process is concerned, DOS processes nonimmigrant and immigrant visa applications filed at United States embassies and consulates, as well as passport applications by United States citizens.

The processing of visa and passport applications is funded by fees paid by applicants and should continue during a shutdown. It is possible that a cessation of funding may impact the operations of some high-volume consular posts, resulting in delays in some applications. Certain types of applications, including those for diplomatic visas, may be prioritized.

It should also be noted that visa applications that require a Security Advisory Opinion (SAO) or other type of clearance from a separate federal agency may be delayed by a shutdown, depending on that agency’s access to funding.

 

What Will DOL Do if a Shutdown Occurs?

In the context of immigration, DOL is the federal agency responsible for processing PERM labor certification applications, issuing Prevailing Wage Determinations (PWDs), and processing Labor Condition Applications (LCAs) through its Office of Foreign Labor Certification (OFLC). Since the OFLC is not funded by fees paid, and its operations are non-essential, its activities will be severely impacted by a shutdown. Specifically, OFLC will stop processing all PERM, PWD and LCA applications, and its employees will not respond to inquiries. The Foreign Labor Application Gateway (FLAG) online systems will also be non-operational. All cases pending at the Board of Alien Labor Certification Appeals (BALCA) will be placed on hold during a shutdown.

OFLC has recommended that all applications using the FLAG portal be filed by 11:59 pm (ET) on September 30. OFLC has also indicated that it is considering allowing some flexibilities for employers who may miss a filing deadline because of the unavailability of the FLAG system.

 

Conclusion

Our team will continue to monitor the situation in Congress on an hourly basis. The current state of affairs unfortunately suggests that a shutdown is entirely possible.  Such a shutdown has occurred in the past, with the most recent occurring in 2018 and lasting for 34 days. There is a possibility that a shutdown this year may last even longer.