What is Happening?

The deadline for Congress to pass a new budget to keep funding the federal government agencies is Friday, December 20, 2024 before midnight Eastern Time. 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 Friday deadline, a federal shutdown will occur and funding for all non-essential discretionary agency functions will be discontinued. This results in all “non-essential” federal agency personnel being furloughed and not allowed to work starting on Monday, December 23, 2024.

President-Elect Donald Trump has played a role in this process and rejected a previously agreed upon bipartisan deal to continue government funding late on Wednesday.  He has also demanded that lawmakers raise the nation’s debt ceiling before he becomes President on January 20, 2025. The bipartisan deal agreed upon on Tuesday of this week would have extended funding through March 14, 2025. President-Elect Trump has also exerted pressure on Republicans in Congress to reject a stopgap bill to keep the government funded past the deadline of midnight on Friday. Elon Musk, although not an elected politician, has also voiced opposition to the adoption of any of the bills or measures proposed to maintain government funding.

 

What Will USCIS Do if a Shutdown Occurs?

USCIS is the federal agency responsible for adjudicating I-129 nonimmigrant and I-140 immigrant petitions, employment authorization document (EAD) applications, 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, used to file PERM applications and LCAs, will also be non-operational and not accessible to the general public. All cases pending at the Board of Alien Labor Certification Appeals (BALCA) will be placed on hold during a shutdown.

In the past, OFLC has recommended that all applications using the FLAG portal be filed by 11:59 pm (ET) before the midnight deadline. OFLC has also indicated in the past that it will consider 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, given the role President-Elect Trump has chosen to play in this process.  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.