Impact of Government Shutdown on Immigration

As the federal government shutdown approaches the one-month mark, business immigration processes continue to be affected. While USCIS remains operational since it is funded by filing fees, other key agencies and programs that depend on congressional appropriations have been significantly slowed or suspended. These disruptions have created practical challenges for employers and foreign nationals trying to maintain compliance and meet filing deadlines.

In practice, some clients have already been affected by their inability to file Labor Condition Applications for H-1B change of employer (aka transfer) petitions, which can be particularly challenging when a candidate is in their grace period. For those affected, we provide several recommendations, such as filing a change of status to a dependent or visitor category to bridge any gaps in status, or, where appropriate, submitting a late filing under the nunc pro tunc provision. USCIS has confirmed that it “will consider the government shutdown an extraordinary circumstance beyond a petitioner’s control” when evaluating late extension or change of status requests, provided all other eligibility requirements are met.

DOL FLAG Portal Disabled; Affecting H-1B/H-1B1/E-3 Filings and PERM Labor Certifications

The shutdown of the U.S. Department of Labor means that the Office of Foreign Labor Certification is not accepting or processing applications. This suspension prevents the filing of Labor Condition Applications (LCAs) and PERM labor certification applications. Because LCAs are required for the filing of H-1B, H-1B1, and E-3 petitions, employers are currently unable to submit new H-1B, H-1B1, and/or E-3 petitions. We advise companies to take this limitation into account as they recruit and plan for new candidates. At this time, it is unknown when the shutdown will end or when filings will resume.

Visa Processing at U.S. Consulates Will Continue

The visa issuance process at U.S. consulates around the world is funded by filing fees and therefore will continue during the shutdown. However, there are instances where consular officers require input from other U.S. agencies that may be affected by the shutdown. The State Department has advised the public that this may cause delays in visa issuance. Consular applications requiring an LCA (H-1B1 and E-3) will also be impacted until the government re-opens, due to the above-mentioned DOL processing suspension.

Agency Operations During Shutdown

The following is a summary of how the shutdown will affect each of the agencies involved in the various immigration processes and services.

Department of Homeland Security: Most of DHS’s work is considered essential, so DHS will remain open.

U.S. Citizenship and Immigration Services: USCIS will remain open as it does not rely on Congress for its funding. The few programs that are funded by Congress may be impacted by a government shutdown.

The Department of State: Visa and passport operations will remain open, however, depending on how long the shutdown lasts, work might become limited to diplomatic visas and life-or-death emergencies.

U.S. Customs and Border Protection: U.S. Ports of Entry will remain open; however, applications that are filed at the border may be impacted.

U.S. Immigration and Customs Enforcement: ICE enforcement and removal operations will continue. ICE attorneys will typically focus on the cases of detained individuals. The ICE Student and Exchange Visitor Program offices will remain open.

Executive Office for Immigration Review: Immigration court cases for detained individuals (the “detained docket”) will continue during a government shutdown. All other cases will be rescheduled for a later date.

U.S. Department of Labor: DOL’s Office of Foreign Labor Certification will stop all operations during a government shutdown.

Congressional Constituent Services: Some congressional offices may be closed during a government shutdown. Please contact the individual office for more information.

At the time of this alert’s publication, there is no firm date for the government to reopen, and clients should be prepared for continued uncertainty through at least early November. We will continue to monitor developments and provide updates as new information becomes available.