Preparing for a Possible November 17 Federal Shutdown
If appropriations legislation or a stopgap spending bill is not passed by Congress by November 17, 2023, the federal government will enter a partial shutdown on November 18. A shutdown would mean that Department of Labor immigration functions such as LCA, prevailing wage, and PERM processing would be suspended until Congress passes a further stopgap spending measure or a FY 2024 budget. Fee-based immigration processing – including USCIS benefit and State Department visa and passport processing – will continue, though with potential delays. However, the USCIS E-Verify and the Conrad 30 programs would expire if Congress fails to extend them. Employers with urgent LCA needs should file soon to ensure that cases can be certified in advance of November 17. Time-sensitive PERM applications should be filed by the same date.
The issue
As the FY 2024 federal budget debate continues, U.S. government funding could expire on November 17, 2023, if Congress fails to pass spending legislation to avoid a government shutdown. In the event of a shutdown, some immigration processes would be suspended, but several others should be unaffected, though processing delays could occur.
A shutdown is not a certainty. The FY 2024 budget and related legislative measures are being negotiated, and Congress has the option of enacting short-term funding to keep the government open during these negotiations, as it has done several times in recent years during similar budget discussions.
A closer look
Should a shutdown occur, the following would be the expected impact on immigration operations based on prior shutdowns in previous years. We will provide updates on ongoing developments.
Department of Labor (DOL): DOL immigration functions would likely be suspended as non-essential functions. No PERM applications, labor condition applications (LCAs), prevailing wage requests (PWRs), or applications for temporary labor certification would be processed. Online application systems would be taken offline and would not accept PERM applications or audit responses, LCAs, or prevailing wage requests. The agency would also be unable to accept submissions by mail.
U.S. Citizenship and Immigration Services (USCIS): As a fee-funded agency, USCIS would continue to process applications and petitions for immigration benefits, but processing delays could occur if adjudication of a case is dependent on support from government functions that are suspended – for example, a clearance from an agency that is affected by the shutdown. Appointments at USCIS local offices and Application Support Centers should not be affected by the shutdown.
Department of State: The State Department’s visa processing and U.S. citizenship document functions would not be suspended as long as filing fees remain available to fund consular operations. However, some passport offices may be affected if they are located in federal buildings that are closed due to the shutdown.
Customs and Border Protection (CBP): Inspection functions at U.S. borders and ports of entry would remain in operation. CBP would likely continue to process immigration applications at the border.
Immigration and Customs Enforcement (ICE): ICE enforcement activities and operations of the Student and Exchange Visitor Information System (SEVIS) would continue.
E-Verify: Congressional authorization for E-Verify will expire if no legislation is passed. Employers would not be able to initiate E-Verify queries or resolve tentative non-confirmations,and would not be expected to meet the usual E-Verify deadlines until the program is reauthorized. However, employers must not take any adverse action against an employee whose employment eligibility verification cannot be confirmed in E-Verify due to a shutdown. All employers remain subject to Form I-9 obligations and deadlines as usual. USCIS has previously indicated that qualifying employers will be permitted to use the alternate document review process for remote I-9 document verification in the event that E-Verify is temporarily unavailable.
Conrad 30 Program: Congressional authorization for the Conrad 30 program will also expire without legislation by November 17.
SAVE System: SAVE is the USCIS database used by government agencies – including state motor vehicle departments – to verify an applicant’s immigration status when processing applications for benefits. SAVE would remain in operation.
What employers should do now
Though a federal agency shutdown could be averted, employers may want to discuss with their immigration counsel whether to submit time-sensitive DOL applications now, such as LCAs that may be needed in the coming weeks, as well as prevailing wage requests and PERM applications for foreign nationals approaching their nonimmigrant maximum periods of stay.