A showdown in Congress over spending cuts and the budget appears headed for a shutdown of federal government operations on October 1st, 2023, and could significantly slow down immigration processing. House Republicans appear to be barreling toward a government shutdown, unable to agree on a spending bill. The so-called Freedom Caucus in the House simply refuses to agree to any bill that doesn’t cave to their demands. Bills over which they are currently fighting cannot possibly pass the Senate. Government funding ends on September 30.
All But Essential To Be Furloughed
If the government agencies close for budgetary reasons, all but “essential” personnel are furloughed and are not allowed to work. The following is an overview of how immigration-related agencies could likely operate during this shutdown.
U.S. Citizenship and Immigration Services
The U.S. Citizenship and Immigration Services is a fee-funded agency so if the government shuts down, it is generally business as usual. The exception to this is programs that receive appropriated funds, that is to say, programs like E-Verify, the EB-5 Immigrant Investor Regional Center Program, Conrad 30 J-1 doctors, and non-minister religious workers, are suspended or otherwise impacted. (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.)
The Special Immigrant Religious Worker Program will sunset on September 30, 2023, unless a Continuing Resolution or appropriations package is signed into law before that date.
Note that 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.
Department Of State
Consular operations can be impacted if there are insufficient fees to support operations at a particular post. In such a case, posts will generally only handle diplomatic visas and “life or death” emergencies. While visa issuance and passport operations are fee-funded and therefore should not normally be impacted by a lapse in appropriations, slowdowns can be expected if support staff are not working.
U.S. Customs And Border Protection
Inspection and law enforcement personnel are considered “essential.” Ports of entry will be open, and the processing of passengers will continue. However, the processing of applications filed at the border, such as L-1, TN, or eSafe waiver applications probably will be impacted. Delays can be expected.
Immigration And Customs Enforcement
ICE enforcement and removal operations will continue, and ICE attorneys will typically focus on the detained docket during a shutdown. The ICE Student and Exchange Visitor Program (SEVP) offices are unaffected since SEVP is funded by fees.
Executive Office For Immigration Review (EOIR)
Immigration court cases on the detained docket will proceed during a lapse in congressional appropriations while non-detained docket cases will be reset for a later date when funding resumes. Courts with only non-detained dockets will not be open and will not accept filings. Courts should issue an updated notice of hearing to respondents or representatives of record for reset hearings.
Department Of Labor
The American Immigration Lawyer’s Association recently reached out to the DOL’s Office of Foreign Labor Certification (OFLC) to see what would happen to OFLC’s operations should the federal government shut down on Sunday, October 1, at midnight (ET) due to budget issues. OFLC confirmed to them that if the federal government shuts down, OFLC will have to disable the FLAG system and will not be able to accept any applications during this period. Additionally, the Committee notes that users will not be able to access the FLAG system to print out any previously approved applications. Delays with H1-B visa applications and employment green card processing can therefore be expected.
U.S. Citizenship And Immigration Services Ombudsman
The Department of Homeland Security Office of the USCIS Ombudsman will close and will not accept any inquiries through its online case intake system. This will shut down reviews of problem cases not processing as normally as they should and will result in slower work in the Department.
Congressional Constituent Services
Some congressional offices have indicated they may be closed during the government shutdown.
Generally speaking, past experience suggests a slowdown in the processing of cases can be expected as federal employees still working adjust to the lack of support normally given to them because of furloughs of non-essential federal employees. A good analogy might be to think of how any office works during holiday periods as employees cover for those taking vacations. Try as they might, things do not return to normal until the holiday periods end. An experience of a similar nature is likely to take place, but possibly for an extended period of time.
Many observers note that this kind of “governing by crisis,” as President Barack Obama once put it, is terribly damaging. This current possible shutdown has the potential to be particularly problematic because there is no obvious solution. After all, it’s hardly a surprise that this budget deadline was coming up and that the Freedom Caucus was angry over the deal McCarthy cut with Biden back in May. Yet McCarthy has been unable in all those months to bring his party to an agreement. Meanwhile, in the case of immigration, an extended delay in federal funding will likely impact the lives of thousands of families awaiting the conclusion of the processing of their immigrant cases.