As the potential for a shutdown on October 1, 2023, looms, historical operations during past shutdowns can provide insight. The Department of Homeland Security (DHS) published guidance in 2022, outlining what functions continue during a funding lapse. While the information is hardly comprehensive, it provides a glimpse into the orderly shutdown process.
For immigration purposes, the distinction in service interruption is primarily between programs funded by fees and those relying on congressional appropriations.
A government shutdown occurs when Congress cannot agree and pass the necessary appropriations bill to fund the federal government. If this happens, a partial government shutdown may occur, affecting various agencies, including those responsible for immigration-related matters.
Most government agencies will close for budgetary reasons. Only “essential” personnel remain working; others are furloughed.
Operations funded by user fees might face limitations but shouldn't stop entirely. Those dependent on congressional appropriations might close all but vital functions.
USCIS is a fee-generating agency, meaning it does not rely primarily on government funding. During past shutdowns, USCIS offices generally continued to operate; however, slowdowns and processing delays can be expected due to reduced staff.
The U.S. Department of State is partially funded by visa application fees and related fees, which have historically permitted it to continue to offer U.S. citizen services and visa processing. However, nonemergency services could be suspended during a prolonged shutdown. If that were to occur, business and employment visas would not be issued, and pending visa application appointments would likely be canceled or rescheduled.
Government shutdowns have substantially impacted the DOL in the past, as the agency is not fee-generating. During past government shutdowns, immigration functions—including those related to submitting labor condition applications (LCAs), PERM labor certification applications, and prevailing wage requests—were suspended, adding to backlogs and longer processing times even after government operations were restored.
According to AILA:
AILA reached out to the DOL’s Office of Foreign Labor Certification (OFLC) regarding what would happen to OFLC’s operations should the federal government shut down on Sunday, October 1, at midnight (ET) due to budget issues. OFLC confirmed that if the federal government shuts down, OFLC will have to disable the FLAG system and will not be able to accept any applications during this period. Additionally, the Committee notes that users will not be able to access the FLAG system to print out any previously approved applications.
To the extent that PERM filers with impending deadlines can file now, OFLC recommends that they do so by 11:59 pm (ET) on September 30. Likewise, if an employer will need an LCA, OFLC encourages them to file this week (Committee note: week of September 18). While a possible shutdown may be less than seven working days away, OFLC indicated that there is a reasonable chance that LCAs submitted this week could be adjudicated before the end of next week.
In the event that there is a shutdown, OFLC is considering issuing guidance about flexibilities for employers with filing deadlines.
In light of these potential disruptions, here are some practical steps you can take:
1. Plan Ahead: Try to submit any necessary applications or paperwork well in advance.
2. Stay Informed: Keep an eye on news updates about the status of the shutdown and how it’s affecting immigration services.
3. Seek Legal Advice: If you’re unsure about how the shutdown might affect your immigration status or application process, consider seeking advice from an immigration attorney.
4. Be Patient: Understand that there may be delays in processing times due to reduced staffing levels.
Remember that while a government shutdown can disrupt many services, essential functions will continue to operate. It’s important to stay informed and prepared during these times.