Important Update: April 9, 2011: Short-term Government Funding Bill Passed.
As it appears as of the time of this article, the U.S. federal government is likely to shut down, we would like to provide some information as to how the shutdown would affect the immigration cases pending or to be filed shortly. Our office has been receiving an increasing number of inquiries from alarmed clients as to what would happen should the federal government close on Monday if a deal is not reached on the federal government’s budget. (See latest Google News)
How Would a Government Shutdown Affect Immigration Cases?
There is no simple answer to this question, as some federal government agencies would continue to operate, some would close partially and some would close almost completely. Since the last time this kind of shutdown happened was 15 years ago, there are no clear rules and guidance as to what would remain open and what would close. With respect to immigration, it appears that there would be some disruptions to pending cases and upcoming filings. Generally, the government is likely to stop all non-essential, all non-self-funded and all non-contractually funded services.
Since USCIS is funded primarily through application fees, it is expected that most of its services and centers would operate normally, perhaps with slightly diminished staff. Because USCIS is a government agency which relies on other government agencies to perform its services, there may be certain disruptions; however, overall, case processing at USCIS is expected to resume. Border processing of immigrants and border enforcement activities would continue as they are deemed “essential.”
Department of State – No (or Slow) Visa Applications; Visa Bulletin Uncertain; NVC Processing Could Continue
The Department of State (DOS) is expected to to cease non-emergency visa services and non-US citizen services at U.S. Consular Posts abroad. As a result, no new visas are expected to be issued and visa application interviews are likely to be cancelled (or postponed). U.S. passport applications will not be accepted and processing of submitted applications is likely to be put on hold.
As a comparison, according to data from the Congressional Research Service Report, during the last shutdown in 1995, approximately 20,000 – 30,000 visas went unprocessed each day and 200,000 applications for U.S. passports went unprocessed.
It is unknown at this point, however, whether the May 2011 Visa Bulletin, which is expected to be issued over the next few days and which is issued by the Department of State, will be affected. We hope that it would be released before Monday when a possible shutdown would take effect. Many of our readers are eagerly expecting the May 2011 Visa Bulletin because it is expected to bring some substantial forward movement to the EB-2 India category.
With respect to immigrant visa (family, employment, etc.) cases pending at the National Visa Center (NVC), it is possible that they would continue to be processed as NVC’s staffing funding was under contract.
Department of Labor – LCA, PERM and Audits
It is unclear exactly how the Department of Labor would be affected. We expect that ETA Form 9035 LCA filings, used most often in connection with H-1B filings, to be affected. This may mean that no new LCAs can be filed (and those filed may be put on hold) and, as a result, new H-1B filings can be delayed.
ETA Form 9089 PERM labor certifications are expected to be similarly affected. It is unclear whether the system allowing new PERM labor certification filings would be shut down; however, we expect that processing of PERM labor certification cases to stop during a shutdown. This holds true for processing of PERM audits and appeals at the BALCA.
While the full extent of the federal government shutdown (if it were to happen over the next day or two) is unknown; we can anticipate some disruptions to government services affecting immigrants. Perhaps more severe would be the disruptions to visa applications at U.S. Consular Posts abroad, followed by delays or inability to file H-1B and/or PERM labor certifications. While some of these affected cases would be able to withstand delay, there would be a number of urgent visa or petition cases which would need to be filed or processed. The shutdown would also create a significant increase in the processing time backlogs for almost all immigration cases.
We stand ready to help analyze any cases which are time-sensitive and may suffer severe negative impact by the shutdown. Please feel free to contact us. Our office would also continue to monitor developments and provide timely updates. Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.