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Immigration Consequences of the Government Shutdown for Employers and Foreign Employees

A federal government shutdown began on October 1, 2013 as a result of Congress failing to pass an appropriations bill by midnight on September 30, 2013. This shutdown will have various immigration-related consequences because the federal government regulates the employment of foreign citizens in the United States. Employers need to be aware of how the federal government shutdown could affect their ability to hire, verify and maintain the status of foreign national employees.

The longest recent government shutdown was in 1995 and lasted 21 days. It is impossible to predict the length of time that the current shutdown will last.

Below is an overview of what can be expected with relation to various immigration services and operations during the shutdown.

Department of Homeland Security (USCIS, ICE, and CBP)

U.S. Citizenship and Immigration Services' (USCIS) adjudications of immigration benefits will continue, since the agency is primarily funded through user fees. This means that USCIS will continue to process applications and petitions for immigration benefits, with some possible processing delays. As explained below, however, petitions that require an approved Labor Condition Application (LCA) from the Department of Labor, such as H-1B, E-3, and H-1B1 petitions, may be adversely affected. USCIS has not yet announced whether it will temporarily accept H-1B, E-3, and H-1B1 petitions without DOL-certified LCAs.

E-Verify, the online system of Immigration and Customs Enforcement (ICE) that allows employers to determine the eligibility of prospective employees to work in the United States, will not be usable during the shutdown. Employers must continue to complete paper I-9 forms to comply with the law and wait to create cases in the E-Verify system until the E-Verify system is again accessible.

Customs and Border Protection (CBP), which oversees the U.S. ports of entry, is expected to retain most of its essential staff as inspection and law enforcement personnel are "excepted" from the shutdown. However, staffing may be limited and it is expected that there will be delays at certain ports of entry. CBP has not yet confirmed whether it will continue to process immigration applications at the border, such as initial TN applications and Blanket L applications for Canadian citizens, but it is predicted that these adjudications will continue.

Department of Labor (DOL)

The Office of Foreign Labor Certification (OFLC), which is part of the Department of Labor (DOL), has authority over Labor Condition Applications (LCAs) that are a required part of H-1B, H-1B1, and E-3 petitions, Prevailing Wage Requests, and PERM Labor Certification Applications. OFLC employees are considered non-essential and will be furloughed during the government shutdown. This means that OFLC will not accept or process any of the above applications during the shutdown, and its web site will remain "unavailable."

Department of State (DOS)

The Department of State (DOS) oversees U.S. embassies and consulates around the world. The DOS has confirmed that processing of U.S. visas abroad will continue as usual for the time being so long as sufficient fees exist to support operations. Other services such as U.S. passport processing will also remain available. However, the DOS notes that if a passport agency is located in a government building affected by a lapse in appropriations, that facility may become unsupported.

If DOS funds lapse, visa and passport processing may be delayed, with exceptions made in situations involving serious medical emergencies or other similar situations.