How does the government shutdown impact immigration?

The United States government shutdown will impact some immigration services. Read below for each immigration department’s current status and how it may impact your business operations.

USCIS

Filing of H-1B, H-4, F-1, EAD, Adjustment of Status, and most other immigrant and non-immigrant requests should not be impacted. These applications are processed by United States and Immigration Services (USCIS), which is self-funded through the filing fees submitted with the petitions/applications. Petitioners may still file requests for initial and extended employment authorization for their foreign national employees*, and eligible individuals may still apply for lawful permanent residence (“green cards”). Petitions already in process with USCIS should continue to be adjudicated according to posted timeframes.

DOS

The Department of State (DOS) handles visa and passport operations. This department is also self-funded through fees and should not be impacted by a government shutdown. The exception is that specific consulates may halt or limit operations if there are insufficient fees to support that particular location. In that case, a visa applicant may request a visa appointment at a different consulate in their home country if another location is available.

CBP

Customs and Border Patrol (CBP) is considered essential and should not be impacted. Foreign national workers with approved petitions and valid visas should be able to continue entering the U.S. Note that processing of petitions/applications at the border, such as TNs, may be impacted as the government limits services at the border to maximize efficiency.

DOL

The Department of Labor (DOL) has already suspended operations. The DOL processes Forms ETA-9089 (“PERM Labor Certification”) and Labor Condition Applications (“LCAs”) through its FLAG system. The FLAG website is currently inaccessible; if you navigate to the site you are greeted with a notice saying the site is “under maintenance.” This means new PERMs and LCAs cannot be submitted, and those applications already submitted to the DOL for certification will not be processed according to the usual timelines. This will impact filing timelines for H-1B petitions.

Summary

Most employment-based immigration services will continue as usual or close to usual. The processes that are most affected are the filing/adjudication of PERMs and LCAs, which cannot be submitted to the DOL for certification and will not be adjudicated until the government resumes operations. 

*A certified LCA is required to file an H-1B petition with USCIS. If the DOL has not already certified an LCA for an H-1B petition, the petition traditionally may not be filed. USCIS recently issued guidance that it may accept H-1B extensions or changes of status that were not timely filed if the only reason for late filing was the missing LCA due to the government shutdown. Speak with your immigration attorney to discuss options and strategy.