How Does the 2023 Government Shutdown Impact Immigration?

Does a Government Shutdown Affect Immigration Agencies?

Although fee-based and essential government agencies like USCIS and CBP have been largely unimpacted by government shutdowns, a government shutdown has and would impact others, most notably the Department of Labor (DOL). The DOL processes several types of applications required for certain filings with USCIS and the Department of State, including:

• Prevailing Wage Determinations; impacts include PERM green card and H-2B work visa filings
• Labor Certifications; impacts include PERM green card and H-2A/H-2B work visa filings
• Labor Condition Applications (LCA); impacts H-1B, H-1B1, E-3 work visa filings

The DOL’s portal where the above applications are filed is called the Foreign Labor Application Gateway (FLAG), and it will be taken offline during a shutdown. Therefore, a shutdown will cause delays in currently pending applications as no determination will be issued, and no application will be certified during a shutdown. Further, it will not be possible to draft or submit new applications while the FLAG site is unavailable. Once FLAG is again operational, there will likely be greater delays in application processing due to increased demand.

If the DOL suspends operations during a government shutdown, they cannot process LCAs. Therefore, employers will not be able to file H-1B, H-1B1 and E-3 petitions with USCIS or the Department of State. This may result in lapses in status for foreign nationals nearing the expiration of their work authorization and delays for employers hiring new employees on these work visas.

Additionally, a pause in DOL processing will delay green card processes. This may result in some foreign nationals having a gap in their U.S. status and work authorization. In some cases, employers may need to redo the recruitment processes if they cannot file an ETA 9089 within the required time frame.

Other Immigration Agency Government Shutdown Impacts

In addition to the DOL, here’s a closer look at the other immigration agency impacts that may occur during a government shutdown:

Does USCIS Shut Down if the Government Shuts Down?

Most USCIS petition and application-based operations should continue as almost all of USCIS’ funding is from filing fees.

However, the E-Verify system will likely be unavailable during a shutdown and employers will not be able to create E-Verify cases for I-9. Employers must continue to complete I-9s and must create cases once E-Verify becomes available.

Once E-Verify is again operational, we expect that there would be a grace period for employers to create E-Verify cases for new hires who started work during the time when E-Verify was unavailable. Further, there will likely be delays in application processing due to increased demand.

Customs and Border Protection (CBP)

While the agency would be without funding, CBP is an essential agency and employees would be required to work not knowing when they will be paid. Operations should continue.

Department of State (DOS)

Visa processing should continue because DOS is mostly funded by application fees. However, if funding deficits impact overall operations, this may cause delays in visa application processing.

While these delays remain a risk in the event of a government shutdown, the government may provide some mediation for employers and foreign nationals. For example, in 2013, USCIS announced that it would forgive certain late filings once the government resumed operations.

Immigration and How to Prepare for a Government Shutdown

To mitigate the impact of a government shutdown, employers may want to consider coordinating with their immigration counsel to prepare for scenarios that may impact their organization. Employers can prepare for a shutdown by considering the following best practices:

• Communicate with stakeholders in your organization about expected delays in processing for impacted case types. A tool like Envoy’s Communications Center helps ensure all stakeholders are kept updated.
• Start dates for newly hired H-1B, H-1B1, and E-3 employees may need to be postponed if certification of an LCA will be delayed.
• Identify foreign national employees with upcoming expiration dates that may face gaps in status and work authorization.
• Prepare for the possibility of incurring additional expenses to redo processes if filing windows are missed (primarily ETA 9089).
• Contact Congressional representatives to convey the shutdown’s negative impact on your organization.

It is still possible for Congress to pass a stopgap spending measure or appropriations bill before Oct. 1, 2023, to avoid a shutdown. We will continue to monitor the situation closely and provide updates as available.

Learn more about Envoy Global’s immigration services and how our team can help you navigate immigration shutdowns.