In December 2021, President Biden signed a short-term funding bill to keep the U.S. government running through Feb. 18, 2022. This short-term funding bill helped avert impacts within the country’s immigration system.
The prospects of a government shutdown looms if Congress does not reach a long-term funding agreement by Feb. 18, 2022.
Previous government shutdowns can inform how stakeholders may prepare for potential delays to immigration processing if there is a shutdown in February or beyond.
Does a Government Shutdown Affect Immigration?
In the past, government shutdowns typically have had a minor impact on the operations of agencies that are fee-funded, such as U.S. Citizens and Immigration Services (USCIS) and the Department of State. Moreover, U.S. Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) were considered essential and as such, they continued operating during prior government shutdowns.
It’s important to note that although these agencies continued to operate during past government shutdowns, there were still delays to some immigration-related functions. The 2018-2019 shutdown had a minimal impact on immigration because most pertinent agencies were able to maintain operations. However, the 2013 shutdown caused significant disruptions to employment-based immigration processing after the Department of Labor suspended operations.
Impacts of Suspension of Department of Labor Operations
Although fee-based government agencies like USCIS have been largely unimpacted by government shutdowns, others (most notably the Department of Labor) have and will continue to be impacted.
The DOL processes several types of applications required for certain filings with USCIS, including:
- Prevailing wage determinations to support PERM (green card).
- Labor Condition Applications (LCA): A certified LCA must be included with H-1B, H-1B1 and E-3 petitions.
- ETA 9089 (PERM), application for permanent labor certification.
If the DOL suspends operations during a government shutdown, LCAs cannot be processed and therefore H-1B, H-1B1 and E-3 petitions cannot be filed with USCIS or processed by Consular Posts abroad. This may result in lapses in status for foreign nationals nearing expiration of their work authorization or delays for employers hiring new employees in H or E status.
Additionally, a pause in processing of ETA 9089 applications at the DOL 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 an ETA 9089 cannot be filed within the required time frame.
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 in the aftermath of a government shutdown.
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. In addition, 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.
- Start dates for newly hired H-1B employees may need to be postponed if certification of an LCA will be delayed.
- Identifying foreign national employees with upcoming expiration dates that may face gaps in status and work authorization.
- Prepare for possibility of incurring additional expense to redo processes if filing windows are missed (primarily ETA 9089).
- Contact Congressional representatives to convey the shutdown’s negative impact on your organization.
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Envoy is pleased to provide you this information, which was prepared in collaboration with Frank J. Fogelbach, who is a Supervising Attorney at Corporate Immigration Partners, one of the two independent U.S. law firms Envoy exclusively works with on the Envoy Platform (the "U.S. Law Firms").
Content in this publication is for informational purposes only and not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult an attorney at one of the two U.S. Law Firms working with the Envoy Platform or another qualified professional. On non-U.S. immigration issues, consult an Envoy global immigration service provider or another qualified representative.