Government Shutdown – How Could Immigration Matters be Impacted?

Amid the prospect of another government shutdown, you may be wondering how such an action could impact immigration matters. Whether a shutdown is averted this time or not, it’s useful to understand what this increasingly frequent possibility would mean for key government agencies involved in overseeing and processing immigration cases, especially as negotiations tend continue up to the ultimate deadline. While the exact operational status will depend on specific guidance issued at the time, policy announcements from prior anticipated shutdowns provide some insight into the likely impact. Agencies involved in immigration that could be impacted include the Department of Homeland Security (and various sub-agencies), the Department of State, the Department of Labor and the Department of Justice.

The U.S. Citizenship & Immigration Services (USCIS) is a fee-based organization within the Department of Homeland Security. Since it is a fee-funded agency, its review of immigration petitions and applications would generally continue as usual. However, those programs that receive appropriated funds to operate, including E-Verify, the EB-5 Immigrant Investor Regional Center Program and the Conrad 30 J-1 Doctors program may be impacted.

U.S. Customs & Border Protection (CBP) also falls under the Department of Homeland Security. Since CBP inspection and law enforcement personnel are considered “essential,” their operations should not generally be impacted. Officers would still be made available at ports of entry to process entries into the U.S. However, visa applications that can normally be filed at the border may be impacted if personnel resources are stretched to cover other non-essential functions.

Similar to CBP, as a law enforcement agency, Immigration and Customs Enforcement (ICE)’s investigative and removal operations would continue. The agency also handles the Student and Exchange Visitor Program (SEVP), but those operations should not be affected since SEVP is fee-funded.

The Department of State’s visa and passport processing are another fee-funded operation, so they would continue to function as usual for the most part. If a shutdown was to impact their operations, it would likely result in Consular Posts limiting their reviews to diplomatic visas and visa requests related to life or death emergencies.

At the Department of Labor, the Office of Foreign Labor Certification (OFLC) would generally stop processing all applications and their personnel would not be available to respond to inquiries. The Office’s web-based systems, iCERT and PERM, would also be inaccessible, and BALCA cases would be placed on hold. However, it should be noted that on September 28, 2018, the President signed a minibus appropriations bill that funds DOL until September 30, 2019.

The Department of Justice’s Executive Office for Immigration Review (EOIR) would also be impacted. Immigration court cases on the detained docket would proceed as usual while non-detained docket cases would be rescheduled for later dates when funding resumes. Courts with detained dockets would receive all filings but would only process those involving detained dockets. In addition, the courts that only have non-detained dockets would close and would not accept filings.