The country dodged a government shutdown at the end of September, but we may be faced with the same problem on December 3, 2021, when Congress will again have to fund the government. Because we often come close to a shutdown (and sometimes shutdowns happen), it is important to remember how a shutdown affects the immigration agencies.
Because USCIS is fee-funded, it generally continues working even during a government shutdown. However, there are a few programs that stop because they receive appropriated funds:
- EB-5 Immigrant Investor Regional Center Program (but it has not yet been reauthorized by Congress at this point)
- Conrad 30 J-1 Program for physicians
- Non-ministerial religious workers visas
Because E-Verify receives appropriated funds, it stops during a shutdown.
It may not be possible to:
- Enroll in E-Verify;
- Create an E-Verify case;
- View or take action on any case;
- Add, delete, or edit any user account;
- Reset passwords;
- Edit company information;
- Terminate accounts;
- Run reports; or
- Resolve Tentative Nonconfirmations (TNCs).
In the past, during shutdowns, E-Verify has suspended the “three-day rule” and extended the time period for resolving TNCs. Employers are advised not to take any adverse action against an employee while an E-Verify case remains in limbo.
Department of Labor (DOL)
DOL would shut down. The FLAG and PERM systems are inaccessible and BALCA goes into a holding pattern. If this were to happen, we would expect DOL to suspend some deadlines. Remember that USCIS cases that require Labor Condition Applications or Labor Certifications such as H-1Bs, E-3s, or H-2Bs will be affected.
Department of State
Like USCIS, visa and passport operations are fee-funded and would continue despite a government shutdown. But certain consular operations can be affected if the post has not collected enough in terms of fees. Given the slowdowns at consulates due to COVID-19, a government shutdown could just add to the problems. Indeed, some consulates with inadequate funding might close except for “life or death” emergencies.
Customs and Border Protection (CBP)
Because CBP staff are “essential workers,” ports of entry continue to operate during a shutdown, but application processing can be affected.
U.S. Immigration and Customs Enforcement (ICE)
ICE continues its enforcement and removal operations. The ICE Student and Exchange Visitor is fee-funded so continues to operate.
If a government shutdown is imminent, Jackson Lewis attorneys are available to assist you in strategizing and planning.