Government Faces Yet Another Possible Shutdown After March 23, 2018

Congress must pass a spending bill to extend government operations by midnight of March 23, 2018, or else another temporary shutdown of the federal government will go into effect. A government shutdown at this time would be especially problematic because H1B cap season is upon us, and many employers are still waiting to receive certified labor condition applications (LCAs) from the U.S. Department of Labor (DOL).

Annual Budget Process and History of Shutdowns

The money needed to fund federal government operations historically has been budgeted and approved on an annual basis. In recent years, however, relatively short-term bills, known as continuing resolutions, have been passed to keep the government funded. The current continuing resolution is scheduled to expire at midnight on March 23, 2018. If a full budget or, more likely, another continuing resolution is not passed by Congress and signed by the President by then, a government shutdown will occur.

Security, CBP, and Vital Functions Continue

The U.S. government never completely shuts down. As would be expected, even during a budget crisis, agencies responsible for national security and other vital functions remain operational. Thus, even when a shutdown occurs, U.S. Customs and Border Protection (CBP) still has officers stationed at U.S. ports of entry (e.g., airports). This means that individuals continue to travel abroad and be readmitted to the United States, more or less as normal.

Fee-Based Applications and Petitions not Affected

Federal agencies that are primarily funded through fee-based services, rather than direct government funding, also continue to operate during a shutdown. Because filing fees are submitted with many immigration applications and petitions, the U.S. Citizenship and Immigration Services (USCIS) would remain open if there were to be a government shutdown. So, adjustment-of-status applications (I-485s), and other such cases, could continue to be filed and would continue to be processed. Similarly, the U.S. Department of State (DOS) charges fees for the visa services provided at U.S. consulates, meaning that the processing of visas (commonly referred to as visa “stamping”) would also continue.

Department of Labor LCAs and PERMs Would be Impacted

No fees are currently charged for the immigration functions performed by the DOL, so these services are likely to halt in the event of a government shutdown. This can be quite disruptive to immigration cases. The DOL is responsible for approving LCAs, which are required when filing H1B petitions. The DOL is also the primary agency responsible for the labor certification (LC) process, which must be completed before moving forward with most employment-based, permanent residency (“green card”) cases.

Should a shutdown occur, it is unclear what accommodations, if any, the USCIS may make for companies unable to obtain a certified LCA in time to file during the first week of April.

Impact on Immigration Programs Scheduled to Expire

In recent years, several immigration programs with expiration dates have been extended each time an annual budget or continuing resolution has passed. For instance, the regional center portion of the employment-based, fifth preference (EB5) immigrant investor program will expire unless Congress acts, as will the employment-based, fourth preference (EB4) non-minister religious worker program, and the Conrad 30 waiver program for physicians. If Congress fails to extend these programs before the current continuing resolution expires, the government will stop processing these applications, until such time as they again are extended.

Conclusion

The Murthy Law Firm is urging Congress and the President to reach an agreement that will avoid a government shutdown. Stay tuned to MurthyDotCom for updates related to this ongoing budget battle.

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