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Imminent Government Shutdown?

January 2018

Congress must pass stopgap legislation to avert a shutdown of the federal government by Friday, January 19th at midnight. The bill, if passed, would fund the government through February 16, 2018, setting up another potential showdown just weeks from now.  The stopgap legislation narrowly passed in the House, but is expected to face opposition in the Senate.  If the Senate does not pass the short-term spending bill, it will trigger a shutdown of the federal government that would impact agencies providing services for U.S. employers and their foreign workers, including:

Department of Labor (DOL):

DOL’s Office of Foreign Labor Certification (OFLC) oversees the filings and adjudications of PERM Labor Certifications as well as Labor Condition Applications (LCAs) required for H-1B and E-3 nonimmigrant visa processes.

OFLC employees are considered non-essential and therefore would be placed in furlough status during a government shutdown. OFLC would neither accept nor process any applications or related materials, including LCAs, applications for a prevailing wage determination, PERM applications and audit responses. The iCERT Portal System used for filing LCAs and PERM applications would be unable to process any requests. 

Department of Homeland Security (DHS) & Citizenship and Immigration Services (CIS):

Many of the functions of DHS would not be significantly impacted by a shutdown. Customs and Border Protection (CBP) and Immigration Customs Enforcement (ICE) would be expected to retain most of their essential staff.  Ports of entry will be open; however, the processing of applications filed at the border may be impacted.

As CIS is primarily a user-fee funded service, Service staff would continue to report to work during a shutdown and continue to process applications and petitions, although there could be processing delays. It is not clear how the Service would handle petitions that require approved DOL certifications, such as H-1Bs petitions that require certified LCAs). CIS would have the authority to temporarily accept extension petitions without DOL-certified LCAs, if they chose to do so.

In regards to I-9 Employment Eligibility Verifications, employers would be required to continue completing I-9s for all employees, however E-Verify (USCIS’ free, internet-based I-9 system) would be inaccessible during the shutdown. Employees would still be required to complete Section 1 of the Form I-9 on or before the first day of employment and employers would still need to complete Section 2 of the Form I-9 no later than the third business day after an employee begins working for pay.

Department of State (DOS):

DOS oversees U.S. Consulates and Embassies abroad as well as U.S. passport agencies. It is expected that Consular operations (including non-immigrant and immigrant visa issuances) would continue as long as those operations are supported by fees.  If visa operations do become affected, consular posts will generally only handle diplomatic visas and “life or death” emergencies. The issuance of U.S. passports at Consular posts would also be expected to continue (another fee based service), however if is a passport agency is located in a government building affected by the shutdown, that facility may be considered unsupported.