With the news that House conservatives have objected to a bipartisan spending bill that would have extended government funding until March, we find ourselves again on the precipice of a government shutdown.
When the government shuts down, all government employees except those deemed “essential” are furloughed and not allowed to work. This can profoundly impact some people’s immigration cases, while others are not impacted. Below, I explain the likely impacts on services offered by each of the agencies that handle immigration services.
U.S. Citizenship and Immigration Services (“USCIS”)
USCIS is largely funded by the filing fees paid by applicants and petitioners. While clients are often surprised at USCIS’ filing fees, which exceed $3,000 for a green card case with applications for work and travel authorization, a silver lining appears during government shutdowns. While other agencies grind to a halt, operations continue at USCIS for most cases. This means that, for the vast majority of cases, USCIS will continue receiving and processing cases as normal.
There are a few exceptions, as certain USCIS programs do receive funds appropriated by Congress. These are: E-Verify, the EB-5 Immigrant Investor Regional Center Program, Conrad 30 J-1 doctors, and non-minister religious workers. The impacts on these programs are as follows:
In 2023, USCIS confirmed that employers may use the alternate remote I-9 document verification process when E-Verify is inactive due to a government shutdown.
Although it is funded by appropriations, the EB-5 Immigrant Investor Regional Center Program should not be impacted by this shutdown, as it has been authorized until September 30, 2027
The Special Immigrant Religious Worker Program will expire December 20, 2024, unless a continuing resolution or appropriations package is signed into law extending the program.
Following past government shutdowns, USCIS has accepted late Form I-129 filings for H-1B, H-2A, or H-2B visa applications when submitted with evidence that the primary reason for failing to timely file an extension of stay or change of status request was the government shutdown. While there is no guarantee that USCIS would adopt this policy again following this shutdown, it is possible that USCIS would again adopt this policy.
U.S. Department of State (“DOS”)
Visa applications through U.S. embassies and consulates abroad and passport operations are funded by filing fees. Like most USCIS services, these services are not directly impacted by a government shutdown. However, these applications can be impacted when the total filing fees are not sufficient to support a particular U.S. embassy or consulate. When this occurs, that post will normally scale down operations to handle only visas for diplomats and life or death emergencies.
U.S. Customs and Border Protection (“CBP”)
The U.S. government considers customs officials who handle inspection and law enforcement to be essential, therefore these individuals continue working during government shutdowns. This allows travelers to continue to enter the U.S. through ports of entry at land borders and airports. However, certain visa applications that are processed at the border, including border-filed TN and L-1 applications for Canadian citizens, may be impacted.
U.S. Immigration and Customs Enforcement (“ICE”)
The operations of ICE are generally considered essential, meaning that the immigration enforcement and removal functions of ICE are generally unaffected by a government shutdown. Additionally, ICE attorneys continue to represent the government in immigration court in cases involving people in immigration detention.
Executive Office of Immigration Review (“EOIR”)
EOIR handles the operations of the immigration court system. Generally, cases involving people in immigration detention will continue as schedules, while court dates involving people who are not detained will be rescheduled for a date following the end of the government shutdown.
U.S. Department of Labor (“DOL”)
The Office of Foreign Labor Certification (“OFLC”), which allows businesses to apply to DOL for certification to hire foreign workers through PERM and LCA applications, would stop receiving and processing applications during a government shutdown. This would be effective 11:59 pm on December 20. Any pending cases with the Board of Alien Labor Certification Appeals would be placed on hold. In the event of a shutdown, it is possible that OFLC would issue guidance about flexibility for employers with pressing filing deadlines.
USCIS Ombudsman
The USCIS Ombudsman, who assists with problematic and long-pending adjudications would close and not accept any inquiries during a government shutdown.
Congressional Offices
Some congressional offices may close during a government shutdown, although this may vary office to office.
Navigating moments like these can be difficult without an experienced immigration attorney by your side. Since graduating from Vanderbilt Law School in 2013, I have practiced exclusively immigration law and have helped hundreds of people make their home in the United States. I provide immigration law services in Portland, Oregon and to clients throughout the United States and abroad.
This post is intended as only general information and is not a substitute for legal advice. Without discussing the specifics of a person’s case, it is not possible to give legal advice. Please feel free to reach out using the “Let’s Talk” link at tailwindil.com, and I will respond to you as soon as possible.
Vance Berry, Principal Attorney
Photo credit: Caleb Oquendo