Temporary Government Shutdown: How Immigration Might be Affected

If the U.S. Congress cannot reach an agreement on a funding extension before midnight tonight, there will be what is commonly referred to as a government shutdown, effective October 1, 2013. In such a situation, government services are not completely eliminated. However, government operations are limited and some government functions cease until the funding issues are resolved.

Background

Generally, the U.S. Federal Government sets a budget annually and funds operations through passage of appropriations legislation. Since Congress failed to reach an agreement on budget issues for fiscal year (FY) 2014, however, funding is currently approved and available only through the end of September 30th, which is the last day of the current fiscal year.

History of Government Shutdowns

The last time the United States government shutdown was in 1995. The 1995 shutdown was the longest event of its type in U.S. history, lasting twenty-one days (from December 16, 1995 to January 6, 1996). This had been preceded by a five-day shutdown in November 1995. There were nine earlier shutdowns of three days or fewer between 1981 and 1995. However, between 1977 and 1980, there were six government shutdowns lasting from eight to seventeen days. A shutdown could be quite brief, or might extend for several weeks.

Not a Complete Shutdown: Services that Must Continue

Even in a shutdown the U.S. government does not simply cease all operations. Under existing guidelines, the U.S. government would continue activities that provide for national security and protect life and property. The government would continue to issue benefit payments and perform certain contract obligations. These operations include: medical care of inpatient and emergency outpatient care; continuance of air traffic control; continuance of border protection; law enforcement and care of prisoners; emergency disaster assistance, and similar services and operations. Additionally, and particularly relevant to immigration, some services that are self-funded (through payment of user fees) continue to operate.

Impact on USCIS and Other Immigration Applications / Petitions

CBP: Open for Business

The U.S. Customs and Border Protection (CBP) deals with national security and protects life and property, and therefore must remain operational. It would still be possible, therefore, to travel into the United States as a foreign national.

USCIS Benefits Continue

USCIS operations are largely funded by filing fees submitted with various applications and petitions. Functions such as adjudication of applications and petitions are likely to continue. However, there could be some reductions and limitations on aspects of these functions. This portion of the immigration process would continue.

U.S. Department of Labor: Not Operating

Unlike the USCIS, the Department of Labor (DOL) does not charge user fees for its services. It is thus expected that the DOL would cease processing PERM labor certifications, prevailing wage determinations, and other immigration-related benefits. The DOL had confirmed during a prior government shutdown scare that DOL investigations, including those related to I-9 and labor condition application (LCA) violations would cease during a shutdown.

U.S. Department of State:  Temporarily Operational

Available information indicates that the U.S. Department of State (DOS) would remain largely operational for an (unspecified) limited time. This includes consular operations and the fee-funded visa issuance activities abroad. There may be some difficulties with passport issuance, due to the need to access federal buildings. We note that this differs from the DOS expectations and policy announcements in 2011. At that time, the DOS stated that it would have needed to discontinue non-emergency visa and passport services.

ICE: Limited Services

In the event of a government shutdown, it is expected that Immigration and Customs Enforcement (ICE) would not conduct I-9 audits. Additionally, without funding ICE would not be able to initiate removal proceedings. The security-related functions and care of those who are detained would need to continue.

Impact of a Possible Shutdown

For most MurthyDotCom readers, the greatest impact of a potential shutdown would likely be caused by a lack of DOL services. If LCAs cannot be filed, then there could be problems for those facing deadlines for H1B filings. LC cases would also face difficulties in the event of a government shutdown. There are important timing considerations and expirations related to the prevailing wage determination (PWD) and advertisements. We will continue to update readers in the event that an agreement cannot be reached so as to avoid disruption to major government functions.

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