Washington, DC. It is more than likely that the U.S. government may shutdown due to the Congress’ failure to pass the government budget. To date, Congress has not passed, nor has President Biden signed, any of the 12 spending bills needed to keep the government open beyond the end of FY2023 on September 30, 2023. Unless these appropriations bills are passed, or Congress agrees on a temporary continuing resolution (CR), funding for agencies will lapse by midnight (ET) on October 1, 2023, which could result in a shutdown of some government agencies.
General Shutdown Information: If the government agencies close for budgetary reasons, all but “essential” personnel are furloughed and are not allowed to work. The following is an overview of how the immigration-related agencies have operated during prior shutdown periods. DHS has updated its guidance outlining a contingency plan and what activities are considered essential (or exempt.)
USCIS is a fee-funded agency so if the government shuts down, it is generally business as usual. The exception to this is programs that receive appropriated funds – E-Verify, the EB-5 Immigrant Investor Regional Center Program, Conrad 30 J-1 doctors, and non-minister religious workers, which are suspended or otherwise impacted.
- The EB-5 Immigrant Investor Regional Center Program should not be impacted by a shutdown as it was authorized through September 30, 2027.
- The Special Immigrant Religious Worker Program will sunset on September 30, 2023, unless a CR or appropriations package is signed into law before that date.
- USCIS has confirmed that employers may continue to use the new alternate document review process for remote Form I-9 document verification if E-Verify is temporarily unavailable due to a government shutdown.
- In the past, when the government reopened, USCIS accepted late I-129 filings provided the petition was submitted with evidence that the primary reason for failing to timely file an extension of stay or change of status request was the government shutdown.
Department of State:
Visa and passport operations are fee-funded and thus are not normally impacted by a lapse in appropriations. Consular operations can nevertheless be impacted if there are insufficient fees to support operations at a particular post. In such a case, posts will generally only handle diplomatic visas and “life or death” emergencies.
U.S. Customs and Border Protection:
Inspection and law enforcement personnel are considered “essential.” Ports of entry will be open, and processing of passengers will continue; however, processing of applications filed at the border may be impacted.
Immigration and Customs Enforcement (ICE):
ICE enforcement and removal operations will continue, and ICE attorneys will typically focus on the detained docket during a shutdown. The ICE Student and Exchange Visitor Program (SEVP) offices are unaffected since SEVP is funded by fees.
Immigration Courts/ Executive Office for Immigration Review (EOIR):
Immigration court cases on the detained docket will proceed during a lapse in congressional appropriations while non-detained docket cases will be reset for a later date when funding resumes. Courts with detained dockets will receive all filings but will only process those involving detained dockets. Courts with only non-detained dockets will not be open and will not accept filings. Courts should issue an updated notice of hearing to respondents or representatives of record for reset hearings. Members may want to check with their local chapters for court-specific instructions. While EOIR has not issued any guidance about credible fear reviews or cases in the Family Expedited Removal Management (FERM) program, these cases are likely to be categorized as essential and will likely continue during a shutdown.
U.S. Department of Labor:
The Office of Foreign Labor Certification (OFLC) of the Employment and Training Administration under DOL would cease processing all Labor Conditions Applications (LCA), Prevailing Wage Determination (PWD), Temporary Labor Certifications, PERM Labor Applications and other applications in the event of a government shutdown. DOL personnel would not be available to respond to e-mail or other inquiries. OFLC’s web-based systems, FLAG and PERM, would be inaccessible, and BALCA dockets will be placed on hold.
Note: This is a blog post by Adhikari Law PLLC and should NOT be construed as a legal advice. Changes in immigration policies and procedures are complex and may require a consultation with an experienced immigration lawyer.
You can contact us at (+1) 202 600 7742, or email us at email@example.com if you will have any question on this topic or need advise or guidance on the matter.