Immigration Consequences of a Possible Federal Government Shutdown

Published Date: 
September 30, 2013
Authors: 
Charles Gillman (Raleigh),

If the U.S. House of Representatives and U.S. Senate fail to pass a bill financing the federal government, it will likely result in a partial government shutdown on October 1, 2013. The effect of a shutdown will vary among government agencies. Although large parts of the federal government could close, many government functions would continue. The following information is drawn from recent communications from federal agencies or based on contingency planning for the averted April 2011 federal government shutdown.

U.S. Citizenship and Immigration Services

U.S. Citizenship and Immigration Services (USCIS) is primarily funded by user fees rather than government funding. It is, therefore, expected that most of its offices will continue to operate, albeit with a diminished staff during a shutdown. However, significant processing delays are likely to occur because USCIS relies upon other government agencies to perform its services (see below for how these agencies are likely to be affected). At this time, it is unknown whether the E-Verify program will be treated as an essential service and continue operating in the event of a shutdown.

U.S. Department of Labor

A shutdown would have a substantial impact upon the U.S. Department Labor (DOL) because the DOL does not rely upon user fees and is dependent on government funding. Eighty-two percent of the DOL is expected to be furloughed.

The latest information from the DOL is that in the event of a government shutdown, the agency will neither accept nor process any applications or related materials (such as audit responses), including Labor Condition Applications, Applications for Prevailing Wage Determination, Applications for Temporary Employment Certification, or Applications for Permanent Employment Certification. OFLC's web site, including the iCERT Visa Portal System, would become static and unable to process any requests or allow authorized users to access their online accounts.

U.S. Customs and Border Protection

Inspection and law enforcement are considered "essential personnel," though staffing may be more limited than usual. U.S. ports of entry are expected to continue to accept applications for admission, but U.S. Customs and Border Protection (CBP) is uncertain how the shutdown will affect the overall processing of applications filed at the border.

U.S. Department of State

The U.S. Department of State (DOS), which receives funding in accordance with the annual State, Foreign Operations and Related Appropriations Act, may be able to operate for a limited time. However, in the event of a shutdown, DOS is expected to cease non-emergency visa services and non-U.S. citizen services at U.S. Consulates. In that case, no new business or work visas are expected to be issued and visa application interviews are likely to be rescheduled.  

Conclusion

While the full extent of a federal government shutdown is uncertain, in the event of a shutdown we anticipate substantial disruptions in government services relied upon by companies that employ foreign nationals. It is anticipated that the most significant disruptions would be:

  • the inability of individuals to apply for visas at U.S. Consulates;
  • the inability of employers to obtain certified LCAs and submit H-1B petitions; and
  • the DOL’s inability to process PERM labor certifications and prevailing wage determinations. 

Overall, a federal U.S. government shutdown would likely increase the processing times for most immigration-related matters.

Additional Information

Should you have any questions regarding this development, please contact the Ogletree Deakins attorney with whom you normally work, a member of our Immigration Practice Group, or the Client Services Department at clientservices@ogletreedeakins.com.

Note: This article was published in the September 30, 2013 issue of the Immigration eAuthority.