October 2023 Government Shutdown and Immigration: (How) Will It Affect Me?

Many of our clients and readers have been anxiously awaiting news from Washington, DC regarding the funding of the federal government and the threat of shutdown and how it would impact immigration processing.    We are providing an overview of what would happen should or when the federal government closes.   The biggest impact for employment-immigration matters is likely to be a possible disruption in DOL services via FLAG (prevailing wages, PERM, LCAs).

Please check back at this page as we will provide updates as the situation unfolds and as agencies provide more details on disruptions on their operations.

Update (10/1/2023):  crisis averted (for now).   Google News.

How Would a Government Shutdown Affect Immigration Cases?

There is no simple answer to this question, as some federal government agencies would continue to operate, some would close partially and some would close almost completely.  The last time this kind of shutdown happened was four years ago, in 2019, so we can draw upon this precedent for guidance as to what would remain open and what would close.  With respect to immigration, it appears that there would be some significant disruptions to certain pending and upcoming cases and filings.   Generally, the government is likely to stop all non-essential, all non-self-funded and all non-contractually funded services.

USCIS Cases

Since USCIS is funded primarily through application fees, it is expected that most of its services and centers would operate normally, perhaps with slightly diminished staff.  Because USCIS is a government agency which relies on other government agencies to perform its services, there may be certain disruptions; however, overall, case processing at USCIS is expected to resume.   Border processing of immigrants and border enforcement activities would continue as they are deemed “essential.”

E-Verify will likely be shut down so E-Verify employers may not be able to process E-Verify checks within the required timeframe.   Although employers must still complete Form I-9 on a timely basis,  it is likely, as it has happened in the past, that U.S. Department of Homeland Security will suspend the E-Verify’s 3-day rule and extend the time for responding to Tentative Non-Confirmations.

Department of State

Visa and passport operations are fee-funded and should not be impacted dramatically by the shutdown.   However, decreased staffing levels may impact service and processing levels.    It is unknown at this point, however, whether and how the upcoming Visa Bulletin (due out in mid-October) will be affected.    With respect to immigrant visa (family, employment, etc.) cases pending at the National Visa Center (NVC), it is possible that they would continue to be processed as NVC’s staffing funding is under contract.

Department of Labor

It is anticipated that DOL-provided services will be suspended for the duration of a government shutdown.   This means that DOL-provided systems and services will not be accessible – this includes FLAG and FLC systems.    No new filings will be possible and all access to the systems (including accessing historical cases and data) will be disabled.

Employers will not be able to access the FLC-provided prevailing wage databases.    Employers will also not be able to file new LCAs (for H-1B petitions) and existing and pending LCAs will be put on hold.    Since the entire FLAG (and FLC) systems will be shut down,  the websites will not be accessible and there will be no access to existing (and previously-filed and approved) cases.

Needless to say, this will create significant disruption to employers who are in the H-1B process, especially those who need an LCA certified promptly.  The H-1B “cap” filing deadline of October 30th is also fast approaching and this may create a danger of missing the H-1B cap filing deadline if the government shutdown lasts for more than a few days.   Similarly, PERM cases that have expiring recruitment periods are in danger.

We recommend employers to aim to submit any pending applications as soon as possible to avoid missing deadlines.   We recommend accessing and downloading any certified PERM, prevailing wage, and LCA applications before October 1.

State Driving License Processing

While driving license processing is a function of each state and generally not affected by federal government status,  certain driving license applications submitted by foreign nationals may be subject to immigration status verification through the SAVE system.     If the SAVE system is shut down or not adequately staffed, it is possible that driving license processing will be affected.

Conclusion

We do not know the clear and full extent of the possible upcoming Federal government shutdown; however, we urge careful consideration as to what cases may be impacted (and how) and to move proactively, especially as it pertains to DOL-related filings.

While some of these affected cases would be able to withstand delay, there would be a number of urgent visa or petition cases which would need to be filed or processed.   The shutdown would also create a significant increase in the processing time backlogs for almost all immigration cases.   We urge clients who have time-sensitive cases which may be affected by the government shutdown to plan accordingly.

We stand ready to help analyze any cases which are time-sensitive and may suffer severe negative impact by the shutdown.  Please feel free to contact us.   Our office would also continue to monitor developments and provide timely updates.  Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.