• Preparing for a Possible Federal Government Shutdown
  • May 11, 2017
  • Law Firm: Fragomen Del Rey Bernsen Loewy LLP - New York Office
  • Debate over the FY 2017 federal budget has intensified in Congress, raising the possibility of a federal government shutdown and the suspension or delay of some immigration functions as of April 29. Though a shutdown is by no means certain, employers should be prepared in the event that Congress does not reach agreement on a spending bill or stopgap measure by April 28.

    In addition, Congress has yet to agree on whether to extend several expiring immigration programs: the E-Verify employment eligibility verification program, the EB-5 Regional Center permanent residence program for foreign investors, the Conrad 30 program for foreign medical graduates and the non-minister religious worker permanent residence program. If these programs are not reauthorized or temporarily extended, they will terminate on April 28.

    Immigration operations would likely be handled as follows in the event of a shutdown and continued impasse on expiring immigration programs.

    Department of Labor

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

    Employers who have an imminent need for LCAs should submit them for processing soon to minimize the consequences of a potential shutdown on extensions of stay and other H-1B, E-3 and H-1B1 filings that require an LCA. Because LCAs typically take up to seven days to be certified, cases that are not filed soon may not be completed by April 28. Employers with already approved multislot LCAs may be able to use them to meet urgent needs.

    Employers with due dates for PERM filings or audits in May 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 or H-1B1 extensions or changes of employer - 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.

    USCIS’s SAVE system, which is used by government agencies to verify the immigration status of applicants for benefits, could remain operational, but if it is suspended, foreign nationals applying for driver’s licenses and other state or federal benefits would experience delays.

    If the E-Verify program is not reauthorized by April 28, employers who participate in the system would no longer be obligated to submit employment verification queries. If the EB-5 Regional Center program lapses on April 28, USCIS would cease to accept petitions and applications for adjustment of status under this category. Similarly, Conrad 30 waiver applications and non-minister religious worker petitions would not be accepted.

    Department of State

    DOS should process visa applications as long as filing fees remain available to fund consular operations. If a shutdown is lengthy and fee funding is depleted, the agency could suspend visa processing or limit it to emergency cases only.

    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.