Client Advisory: Impact of Looming Government Shutdown on Business Visa Processing
A government shutdown can significantly affect business visa processing for corporations and their foreign national employees. When Congress does not pass the necessary appropriation bills or continuing resolutions, many federal government operations are suspended, except those classified as “essential.” Understanding these impacts is critical for organizations navigating the immigration landscape during such periods.
Overview of Government Shutdown Effects
During a shutdown, agencies responsible for immigration services may operate differently based on their funding sources and functions. While some processes will continue, others could be delayed or temporarily halted, directly impacting business visa applicants and employers.
USCIS Operations
U.S. Citizenship and Immigration Services (USCIS), which is largely funded through application fees, generally maintains its operations during a government shutdown. However, programs within USCIS that rely on congressional appropriations, such as E-Verify, may be suspended. When E-Verify is unavailable, employers are permitted to use the alternate review process for remote I-9 document verification, ensuring that employment verification can proceed without significant disruption.
H-1B and Other Business Visas
Business visa processes, such as the H-1B cap registration, are not impacted by a government shutdown according to USCIS guidance. Corporations can continue to submit H-1B petitions and pay the required fees as usual. Nevertheless, delays may arise in visa issuance and renewals because agencies like the Department of State (DOS), which are also involved in visa processing, might experience operational slowdowns. These delays can especially affect nonimmigrant workers who require timely visa approvals.
- USCIS Operations:
– Fee-Funded Agency: U.S. Citizenship and Immigration Services (USCIS) is primarily funded through application fees, which means it generally continues operations during a government shutdown. However, certain programs that rely on appropriated funds, such as E-Verify, may be suspended.
– E-Verify: If E-Verify is unavailable, employers can continue using the alternate review process for remote I-9 document verification. This ensures that employment verification processes can continue without interruption.
- H-1B and Other Business Visas:
– H-1B Cap Registration: The H-1B cap registration system and related processes are not impacted by a government shutdown, as confirmed by USCIS. This means that businesses can continue to file new H-1B petitions and pay associated fees without disruption. However, H-1B Cases will be impacted by a Department of Labor (DOL) shutdown.
Labor Condition Applications (LCAs) for H-1B Cases:
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- Processing Halt: During a DOL shutdown, the Office of Foreign Labor Certification (OFLC) will cease processing all applications, including LCAs. This means that employers will not be able to file new LCAs or receive certifications for pending applications [1].
- Impact on H-1B Filings: Without a certified LCA, employers cannot proceed with filing H-1B petitions. This could delay the hiring of foreign workers and impact business operations that rely on H-1B employees.
– Visa Processing Delays**: While USCIS operations may continue, other agencies involved in visa processing, such as the Department of State (DOS), may experience delays. This can affect visa issuance and renewals, particularly for nonimmigrant workers.
- Prevailing Wage Processing:
- Suspension of Determinations: Prevailing wage determinations, which are necessary for both H-1B and PERM applications, will also be suspended during a DOL shutdown. This can delay the initiation of new applications and affect the timeline for hiring foreign workers
- PERM Processing:
- Application Processing on Hold: The processing of PERM applications will be placed on hold during a shutdown. Employers with pending PERM applications will face delays, which can impact the timeline for obtaining green cards for foreign employees.
- Filing Deadlines: Employers with impending PERM filing deadlines are advised to file before the shutdown to avoid delays. The OFLC may issue guidance on flexibility for employers with filing deadlines during a shutdown
Conclusion
While USCIS operations are largely unaffected by a government shutdown due to its fee-funded nature, certain programs and processes may experience delays, particularly those involving other federal agencies. In particular, the Department of Labor shutdown of the LCA and PERM systems can cause delays long after the shutdown ends. During the 17-day shutdown in 2013, the DOL halted PERM processing, prevailing wage processing and H-1B LCA processing. After the shutdown ended, the DOL legacy system struggled to restore service resulting in weeks long delays in restoration of the DOL system. Employers should be prepared for potential disruptions DOL functions and in E-Verify and visa processing at U.S. consulates and embassies. It is advisable to continue monitoring updates from relevant agencies and adjust immigration strategies accordingly.
