Temporary Government Shutdown: How Immigration Might be Affected

Update: Due to an agreement on government funding for a two-week period, there will not be an immediate government shutdown. The Continuing Resolution provides funding until March 18, 2011. A shutdown remains possible in the future if a longer term agreement is not reached.

—–

If the U.S. Congress cannot reach an agreement on a funding extension by March 4, 2011, there could be what is commonly referred to as a government “shutdown.” In such a situation, government services are not completely shut down but they are limited, and some functions cease until the funding issues are resolved. This explanation of what a temporary shutdown would entail from an immigration point of view is for the benefit of MurthyDotCom and MurthyBulletin readers.

Background: Disagreement Over Funding Levels

Generally, the U.S. Federal Government sets a budget annually and funds operations through passage of appropriations legislation. However, since they have failed to reach an agreement on budget issues for fiscal year (FY) 2011, funding is currently approved and available only under a temporary measure, which is set to expire on March 4, 2011.

Congress must agree to a continuation of temporary funding to maintain the status quo. On February 19, 2011, the Republican-controlled U.S. House of Representatives approved a budget containing $60 billion in cuts. This is not acceptable to President Obama or many Democrats in the Senate. If no compromise is reached by March 4, 2011, the United States will face the first government shutdown since 1995.

History of Government Shutdowns

As stated, the last time the United States faced a government shutdown was in 1995. The 1995 shutdown was the longest event of its type in U.S. history, with a duration of twenty-one days (from December 16, 1995 to January 6, 1996). This had been preceded by a five-day shutdown in November 1995. There were nine earlier shutdowns of three days or less between 1981 and 1995. However, between 1977 and 1980, there were six government shutdowns lasting from eight to seventeen days. Thus, a shutdown could be quite brief, but might extend for several weeks.

Not a Complete Shutdown: Services that Must Remain Open

Even in a shutdown the U.S. government does not simply cease all operations. Under existing guidelines, the U.S. government will continue activities that provide for national security and protect life and property. The government will continue to issue benefit payments and perform certain contract obligations. These operations include: medical care of inpatient and emergency outpatient care; continuance of air traffic control; continuance of border protection; law enforcement and care of prisoners; emergency disaster assistance, and similar services and operations. Additionally, and particularly relevant to immigration, some services that are self-funded (through payment of user fees) continue to operate.

Impact on USCIS and Other Immigration Applications / Petitions

CBP: Open for Business

The U.S. Customs and Border Protection (CBP) will remain operational, as they deal with national security and protect life and property. Thus, it will still be possible to travel into the United States as a foreign national.

USCIS Benefits Continue

The USCIS is expected to continue to adjudicate benefits applications and petitions. This is possible because these operations are funded by the filing fees that are submitted with the various applications and petitions. Thus, this portion of the immigration process, commonly utilized by MurthyBulletin and MurthyDotCom readers, will continue.

U.S. Department of Labor: Not Operating

Unlike the USCIS, the Department of Labor (DOL) does not charge user fees for its services. It is thus expected that the DOL will cease processing PERM labor certifications, prevailing wage determinations, and other immigration-related benefits. We have received confirmation that DOL investigations, including those related to I-9 and labor condition application (LCA) violations would cease during any shutdown.

U.S. Department of State: No Visa Applications

While the diplomatic and security aspects of the Department of State (DOS) operations would continue, visa applications would likely not be processed in the event of a shutdown. It is anticipated that the consulates will not be open for visa appointments and processing. Thus, depending upon the duration of such an event, individuals could be stranded abroad with no way of obtaining required travel documents. The same is true for the processing of U.S. passports.

ICE: Limited Services

In the event of a government shutdown, it is expected that Immigration and Customs Enforcement (ICE) will not be allowed to conduct I-9 audits. Additionally, without funding, they would not be able to initiate removal proceedings. The security-related functions and care of those who are detained would continue.

Impact of a Possible Shutdown

For most MurthyDotCom and MurthyBulletin readers, the greatest impact of the shutdown would likely be caused by a lack of DOL services. If LCAs cannot be filed, then there could be problems for those facing deadlines for H1B filings. LC cases could also face difficulties in the event of a government shutdown, as there are important timing considerations and expirations relating to the prevailing wage determination (PWD) and advertisements. While concerted efforts are underway to avoid any shutdown, it is best to take any steps possible to avoid deadline issues in case the funding dispute cannot be resolved before March 4, 2011.

Copyright © 2011, MURTHY LAW FIRM. All Rights Reserved