In sum, no one will be able to file any new LCAs, prevailing wage requests or ETA 9089 forms during the shutdown.
There are certain immigration-related consequences if the government shuts down. The government’s fiscal year ends September 30, 2023, which means that a shutdown would go into effect at midnight, Eastern Time, on October 1, 2023. The following is a summary of the impact on the government agencies involved in U.S. immigration processes.
Department of Labor – Will Close
The OFLC (Office of Foreign Labor Certification), which is part of the Department of Labor, will close. OFLC processes Labor Condition Applications (LCAs) for H-1Bs, H-1B1s and E-3s, along with prevailing wage requests and ETA Form 9089 related to the PERM process. Also, all of the OFLC's web-based systems (FLAG and PERM) will be inaccessible, so no new applications will be accepted or processed during this time and users will not be able to access the system to print out any previously approved applications. In sum, no one will be able to file any new LCAs, prevailing wage requests or ETA 9089 forms during the shutdown.
U.S. Citizenship & Immigration Services (USCIS) – Will Continue to Operate
The USCIS is a fee-funded agency. During a shutdown, the agency is generally able to continue operating. This means that applications and petitions that do not rely on documents issued by the Department of Labor can still be filed, and the USCIS will continue processing any pending petitions or applications.
For H-1B petitions, we will be able to file cases where we have certified LCAs in place before the shutdown. If any new H-1B petition is initiated after the shutdown, including H-1B change of employer petitions for new hires/contractor conversions, amendments for location or entity changes or extensions, we will not be able to file the petition until the government reopens because we will not be able to secure certified LCAs to support these petitions. In the past, when the government reopened, USCIS accepted late I-129 filings provided the petition was 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.
E-Verify/Form I-9 System – Will Shut Down
One exception to the USCIS continuing to operate is for programs that receive appropriated funds, which includes E-Verify. During a shutdown, E-Verify will be suspended or otherwise impacted―however, employers will need to continue to complete Form I-9 for any new hires during this time, and then may go back and input the information into E-Verify once the government reopens.
USCIS has confirmed that employers may continue to use the new alternate document review process for remote Form I-9 document verification if E-Verify is temporarily unavailable due to a government shutdown.
Department of State – May Be Impacted
Visa and passport operations are fee-funded and thus are not normally impacted by a lapse in appropriations. Consular operations can nevertheless be impacted if there are insufficient fees to support operations at a particular post. In such cases, posts will generally only handle diplomatic visas and “life or death” emergencies.
Customs & Border Protection – May Be Impacted
Inspection and law enforcement personnel are considered “essential.” Ports of entry will be open, and processing of passengers will continue; however, processing of applications filed at the border (such as TN and L-1 applications for Canadians) may be impacted.
For More Information
If you have any questions about this Alert, please contact Lisa Spiegel, Maxine D. Bayley, any of the attorneys in our Immigration Law Group or the attorney in the firm with whom you are regularly in contact.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.