WHAT’S HAPPENING
Congress continues to negotiate the Fiscal Year 2016 budget. If no agreement is reached by September 30, 2015, and no other temporary or interim funding measures are agreed upon and implemented, we will be facing a government shutdown on October 1, 2015.
While some members of Congress have indicated that they view a shutdown as unlikely, as we draw closer to the September 30, 2015, deadline, there is increasing concern regarding whether a deal will be reached on the federal government’s budget in time to prevent a shutdown.
WHO THIS IMPACTS
As was the case with the immigration shutdown in October 2013 (which lasted 16 days), immigration functions which are not fee-based and which are deemed “non-essential” would be most severely impacted and would be suspended for the duration of the shutdown. This will primarily include Department of Labor (DOL) operations, including the filing of Labor Condition Applications (LCAs) used for H-1B, H-1B1, and E-3 filings, prevailing wage determinations issued by the DOL, and PERM Labor Certification Applications and Audit responses. The E-Verify system is also likely to be unavailable during a shutdown but employers will still be able to process I-9s.
Immigration functions which are considered “essential” and those which are fee-based (including Customs and Border Protection operations and adjudication of most filings with USCIS respectively) would be expected to continue. However, disruption to these programs or delays caused by the shutdown are possible, most notably cases which require an LCA as part of the filing as outlined above. The Department of State (DOS) is also expected to continue to process visa applications provided fee-based funds remain available to cover its operations.
THINGS TO KEEP IN MIND
Due to the unavailability of many key immigration-related DOL programs, urgent LCAs or PERM applications should be filed before October 1st, if at all possible.
Applications filed with USCIS are mostly fee-based and should therefore not be impacted significantly by a shutdown. However, cases which require LCAs to be filed (H-1B, H-1B1 and E-3 filings) could be impacted. Delays in case processing caused by diminished staff at the USCIS service centers during the shutdown are also possible.
While Visa Applications at Consulates should not be impacted directly, applicants are encouraged to apply for visas as early as possible to avoid delays or issues which could arise in the event of a prolonged shutdown.
Employers should still continue to process Forms I-9 during the shutdown, even though E-Verify will likely be unavailable.
USCIS and the DOL could make certain exceptions for those with filing deadlines that fall during the shutdown including extending filing deadlines, implementing grace periods, and/or accepting nonimmigrant filings without certified LCAs. Such accommodations, however, are not a guarantee.
D&S will continue to monitor the situation and post updates as they become available.
UPDATE: On September 30, 2015 Congress approved a temporary spending measure to keep federal agencies, including relevant immigration programs, operating through December 11, 2015. For more details please read our D&S summary.