What Would A Government Shutdown Mean For Immigration?

Founded in 1998, Envoy is a global immigration services provider offering the only immigration management platform that makes it seamless for companies to hire and manage an international workforce. We combine expert legal representation and proprietary technology to bring efficiency and transparency to the immigration process for employers and employees.

In December 2021, President Biden signed a short-term funding bill to keep the U.S. government running through Feb. 18, 2022.

In December 2021, President Biden signed a short-term funding bill to keep the U.S. government running through Feb. 18, 2022. This short-term funding bill helped avert impacts within the country's immigration system.

The prospects of a government shutdown looms if Congress does not reach a long-term funding agreement by Feb. 18, 2022.

Previous government shutdowns can inform how stakeholders may prepare for potential delays to immigration processing if there is a shutdown in February or beyond.

Does a Government Shutdown Affect Immigration?

In the past, government shutdowns typically have had a minor impact on the operations of agencies that are fee-funded, such as U.S. Citizens and Immigration Services (USCIS) and the Department of State. Moreover, U.S. Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) were considered essential and as such, they continued operating during prior government shutdowns.

Impacts of Suspension of Department of Labor Operations

Although fee-based government agencies like USCIS have been largely unimpacted by government shutdowns, others (most notably the Department of Labor) have and will continue to be impacted.

The DOL processes several types of applications required for certain filings with USCIS, including:

• Prevailing wage determinations to support PERM (green card).
• Labor Condition Applications (LCA): A certified LCA must be included with H-1B, H-1B1 and E-3 petitions.
• ETA 9089 (PERM), application for permanent labor certification.

If the DOL suspends operations during a government shutdown, LCAs cannot be processed and therefore H-1B, H-1B1 and E-3 petitions cannot be filed with USCIS or processed by Consular Posts abroad. This may result in lapses in status for foreign nationals nearing expiration of their work authorization or delays for employers hiring new employees in H or E status.

Additionally, a pause in processing of ETA 9089 applications at the DOL will delay green card processes. This may result in some foreign nationals having a gap in their U.S. status and work authorization. In some cases, employers may need to redo the recruitment processes if an ETA 9089 cannot be filed within the required time frame.

While these delays remain a risk in the event of a government shutdown, the government may provide some mediation for employers and foreign nationals. For example, in 2013, USCIS announced that it would forgive certain late filings in the aftermath of a government shutdown.

Immigration and How to Prepare for a Government Shutdown

To mitigate the impact of a government shutdown, employers may want to consider coordinating with their immigration counsel to prepare for scenarios that may impact their organization. In addition, employers can prepare for a shutdown by considering the following best practices:

• Communicate with stakeholders in your organization about expected delays in processing for impacted case types.
• Start dates for newly hired H-1B employees may need to be postponed if certification of an LCA will be delayed.
• Identifying foreign national employees with upcoming expiration dates that may face gaps in status and work authorization.
• Prepare for possibility of incurring additional expense to redo processes if filing windows are missed (primarily ETA 9089).
• Contact Congressional representatives to convey the shutdown's negative impact on your organization.

Originally published 14, FEBRUARY 2022

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.