• Preparing for a Possible Federal Government Shutdown
  • September 21, 2015
  • Law Firm: Fragomen Del Rey Bernsen Loewy LLP - New York Office
  • As debate over the FY 2016 federal budget intensifies, employers should prepare for a possible government shutdown and the suspension or delay of some immigration services if Congress cannot reach agreement or pass a temporary funding measure by September 30.

    Immigration functions that are essential or funded by user fees - including border operations and application processing at USCIS and U.S. consulates - would likely continue, though delays would be possible. Non-essential functions would be suspended throughout a shutdown. This would include PERM, labor condition application (LCA) and prevailing wage operations at the Department of Labor.

    A federal shutdown is by no means certain, but employers should work with their Fragomen professionals and take precautions now to minimize its potential impact. If a shutdown were to occur, immigration operations would likely be handled as follows, based on how these issues were managed during the 2013 shutdown.

    Department of Labor

    In the event of a shutdown, DOL’s Office of Foreign Labor Certification would suspend all operations. No PERM applications, LCAs, prevailing wage requests or applications for temporary labor certification would be processed. Online application systems would not accept PERM, LCA or prevailing wage applications. The agency would also be unable to process PERM audit responses or other submissions by mail.

    Employers who have an imminent need for LCAs should consider filing now so that an LCA can be in hand before October 1. This is particularly critical for H-1B, E-3 and H-1B1 employees who will need an extension of stay filed on their behalf in the coming weeks. Employers should consider filing multislot LCAs where there is a genuine need for more than one worker in an occupation at a specific worksite. Multislot LCAs can provide greater flexibility to respond to time-sensitive H-1B needs, such as the relocation of H-1B employees to new worksites and the onboarding of new hires porting from H-1B employment with another organization.

    Employers with PERM filing or audit due dates in October should discuss options with their Fragomen team. DOL could offer an accommodation to those with deadlines that fall during a shutdown, but would probably not provide information on grace periods until after its operations resumed.

    U.S. Citizenship and Immigration Services

    USCIS should continue to process applications and petitions for immigration benefits during a shutdown, though processing delays could occur. Because DOL LCA operations would be suspended, employers planning to file H-1B, E-3 and H-1B1 extensions - for which a DOL-certified LCA is required - may be affected. In the past, USCIS has temporarily accepted extensions without a certified LCA in some circumstances, but such an accommodation cannot be guaranteed. Therefore, employers should identify extension needs and file LCAs as soon as possible, as discussed above.

    The E-Verify system would not accept or process employment verification queries during a shutdown.

    USCIS’s SAVE system, which is used by government agencies to verify the immigration status of applicants for benefits, could be affected by a shutdown. If SAVE is suspended, foreign nationals applying for driver’s licenses and other state or federal benefits could experience delays.

    Department of State

    DOS should process visa applications as long as filing fees remain available to fund consular operations. However, if a shutdown is lengthy and fee funding is depleted, the agency could suspend visa processing or limit it to emergency cases only. Foreign nationals who will need a new visa in the coming weeks should consider submitting their application early, if permitted by the relevant consulate.

    Customs and Border Protection

    Inspection functions at U.S. borders and ports of entry would remain in operation. CBP would likely process immigration applications at the border, such as applications for initial TN or blanket L status submitted by Canadian nationals.

    Social Security Administration

    The Social Security Administration would not process applications for Social Security numbers or replacement cards during a shutdown.