10 am, Saturday, January 20th-
Congress failed to find a solution to the budget impasse last night. Non-essential government services have ceased and the web portals needed for PERM and LCA processing are now offline. H-1B cases that do not already have a certified LCA cannot be submitted to USCIS until the budget crisis is resolved and LCA processing resumes. PERM cases with tight filing deadlines could be negatively impacted if the budget deadlock is not resolved promptly.
The State Department has indicated that passport and visa processing services will continue at this time.
The Senate is scheduled to resume deliberations at noon today.
Thursday, January 18th-
News of a potential government shutdown has loomed large in recent weeks. Such shutdowns aren't new--- they have occurred nearly twenty times since the late 1970s. On the eve of yet another potential shutdown, many are left wondering if a shutdown does occur, how will it affect my immigration situation?
What Causes a Government Shutdown?
Government operations and agencies must be funded by previously approved legislation. If there is no funding for operations, the government is prevented from making expenditures and the federal government is forced to “shutdown” non-essential services. The determination of what is essential vs. non-essential is not clear-cut, but virtually all government agencies and operations suspend the work of some employees during a shutdown.
How Could USCIS Be Affected?
Good news for those with USCIS matters--- this agency is primarily user fee funded. In other words, USCIS does not primarily run on federal funding, but instead it uses those petition and application fees you pay when submitting your case. Due to this, USCIS operations should largely continue as normal during a government shutdown. Cases will continue to be filed and processed, despite other departments furloughing their employees.
However, E-Verify, which depends on annual appropriations, may be unable to operate during a shutdown. E-Verify is used to check the work eligibility of employees being hired by many U.S. employers, so shutting down E-Verify temporarily may inhibit the ability of employers to allow new employees to start work.
What About Consular Services? Visa Stamping?
The Department of State immigration operations are also heavily funded by user fees, so in the short term, issuance of non-immigrant or immigrant visas abroad should not be impacted. U.S. consulates and embassies do rely on some government funding, so if there is an extended shutdown, it is quite possible that delays may be seen in the scheduling of interviews and issuance of visas.
Immigration courts may be affected by government shutdowns since they are part of the Department of Justice. Typically, these courts have enough funds to run for several days, but extended shutdowns could lead to EOIR furloughs, which would largely set back the already over-burdened court system.
The Problem Area
Department of Labor (DOL) services would be significantly impacted in the event of a shutdown. LCA/PERM operations (and websites) are likely to be suspended, causing a delay in the ability to file H-1B petitions (a domino effect) and PERM cases.
For the H-1B Applicant- New LCAs cannot be filed and pending LCAs will not be subject to the seven business day review requirement. Prevailing wage determinations will also be halted.
Those with expiring H-1B petitions, H-1B amendments, and those preparing for the cap lottery will be forced to wait for services to resume. Without a certified LCA, an H-1B petition cannot be filed.
For the PERM Applicant- New PERM cases and pending PERM cases will cease. For those with tight recruitment generated deadlines, this can be a significant setback. If a PERM application cannot be filed within the applicable filing window some recruitment will have to be redone. For H-1Bs nearing the end of their six years of status, filing a PERM by a certain date is critical to continue extending their H-1B validity. A delay in filing a PERM may cause certain H-1B workers to run out of H-1B time without an ability to continue extending H-1B on the basis of a PERM pending for more than 365 days.
In years prior, the rush of cases submitted after a shutdown has caused a spike in processing times. After DOL reopens we expect that there will be a rush of LCA, prevailing wage and PERM filings.
The impact is selective, depending on the nature of the case and the agency involved. For many seeking non-immigrant or immigrant status, a government shutdown should not pose a major concern. Since USCIS and the Department of State's immigration operations are primarily user-fee funded, lack of federal funds is not all too relevant to their operations. Petitions and applications should continue to be adjudicated and the timeline for your process should not change.
Yet, those requiring any processing by DOL could see a significant impact as a result of a shutdown. Ellis Porter staff stands ready to prioritize and advise on this basis. While a shutdown is not certain, should one occur, we will continue to update you the expected agency impact.