April 07th, 2011 | Category: Articles, Borders, Government Shutdown,
H-1B, News, News Alert, Travel, Visa Processing
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.
USCIS Cases
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.
Conclusion
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
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