What to Expect When You’re Expecting (a Government Shutdown)

As of this writing, we are just a few days from a potential shutdown of the federal government. You may wonder: what will happen to my H-1B application if the government is shut down? The answer to that question (and many others) will depend on a couple of factors. Your application should continue to be processed normally if it has been filed with USCIS.

However, if you are still waiting on the LCA to be certified by the Department of Labor, I have some bad news. You may be waiting a while. This post will provide some information about why that is the case, and what the potential shutdown may mean for the various agencies involved in immigration to/in the U.S. Here is what to expect when you're expecting a government shutdown!

What is a government shut down?

Congress must pass a budget each year in order to fund the government for the following year. When Congress doesn't pass a budget by the end of September (the end of the fiscal year), it means they haven't agreed on how to spend money for the next year. Without this agreement, there's no legal way to pay for many government activities. As a result, parts of the government must stop working until a budget is passed. This stoppage is called a government shutdown.

Does that mean that no government employees will be working?

No. Not all government employees stop working during a government shutdown. While many "non-essential" government employees will not be allowed to work or get paid, "essential" employees will still continue to work. These "essential" workers include those in areas like public safety, national security, and other crucial services. For example, police, military personnel, and air traffic controllers will still perform their duties. Additionally, the shutdown will not affect fee-based processes.

What does this mean for my immigration application?

What this means for you and your case depends on what agency is handling your case/matter:

• ‍USCIS is generally funded through fees paid with applications and petitions. As such, USCIS should operate close to normal during a shutdown, although a few programs receive appropriated funds and will be affected, such as E-Verify, Special Immigrant Religious Worker Program, and the Conrad 30 J-1 program for doctors.
• ‍The Department of Labor - on the other hand – is not fee-funded. This means that it would cease work on, or even accept filing of, PERM Labor Certifications or LCAs. Further, the FLAG and PERM systems will be inaccessible, so you would not even be able to print previously approved applications.
• Visa and Passport services handled by the Department of State are fee-funded, so in most instances they should not be affected. However, they may impacted be if a post does not have sufficient fees to support its operations. Then, the post would only handle diplomatic visas and emergencies.
• ‍CBP officers are generally considered essential as inspection and law enforcement personnel, so ports of entry will continue to process passengers. However, processing immigration applications filed at the border may be impacted.
• ‍ICE enforcement and removal operations will continue during the shutdown but would be focused on the detained docket. The Student and Exchange Visitor Program is funded by fees so would be unaffected by the shutdown.
• ‍EOIR (immigration court) will similarly proceed with detained docket cases but will re-set non-detained docket cases for a later date. It is unclear how EIOR will handle credible fear reviews or cases under the Family Expedited Removal Management Program; however, these cases will likely be considered essential and thus, may continue during the shutdown.
• ‍The CIS Ombudsman would not accept new inquires or work on outstanding inquires during a shutdown.
• ‍Congressional Constituent Services may or may not be available. Please contact the specific office for more information.

What can I do in the event of a shutdown?

Each individual immigration case is unique, so there is not a one-size-fits-all answer. If you fear your immigration plans/case may be affected by the government shutdown, please contact McEntee Law Group to set up a consultation with an attorney for specific legal advice.‍

Author: Dan Rock, Immigration Attorney