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Quick Hits
- If Congress fails to pass federal government funding legislation, critical immigration functions performed by the U.S. Department of Labor (DOL), such as PERM processing, prevailing wage determinations, and labor condition applications (LCA) will be suspended.
- E-Verify, the federal government’s web-based system used for employment eligibility verification would likely be unavailable during the shutdown.
- Immigration-related services at U.S. consulates abroad would likely be reduced or suspended due to reduced operational impacts at the U.S. Department of State.
Although a federal government shutdown is not certain, recent negotiations in Congress have not been close to bridging the gap on key differences. While a federal government shutdown would likely increase the processing times for many immigration matters, the most critical impacts would affect U.S. employers in the following contexts:
- the inability for employers to obtain certified LCAs for H-1B, H-1B1, and E-3 petitions;
- the inability for employers to receive PERM labor certifications and prevailing wage determinations; and
- the suspension of, or significant delays to, foreign nationals obtaining employment-based visas from U.S. embassies and consulates abroad; and the likely inability of E-Verify employers to initiate new E-Verify cases or resolve tentative nonconfirmations for active cases.
Because U.S. Citizenship and Immigration Services (USCIS) is a fee-generating agency, USCIS would remain operational, although processing delays should be anticipated as other governmental functions are impacted.
U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) are essential agencies for national security, and therefore will remain fully operational in the event of a federal government shutdown.
Next Steps
Employers may want to consider strategies to minimize the impact of potential processing delays to pending cases, including whether to proactively file eligible cases with the DOL prior to midnight ET to ensure timely filing prior to a potential shutdown.
Ogletree Deakins’ Immigration Practice Group will continue to monitor developments and will publish updates on the Immigration blog as additional information becomes available.
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