We have received a number of calls from our clients asking what impact a government shutdown would have on their cases. This morning, the American Immigration Lawyers Association provided guidance:

As Congress continues its budgetary deadlock, the possibility of a government shutdown looms larger by the minute. If Congress is unable to reach accord on Friday, the government will close at midnight, Saturday April 9.

In general, if the government shuts for budgetary reasons, all but “essential” government are furloughed and not allowed to work. So what does this mean for immigration agencies?

U.S. Citizenship and Immigration Services (USCIS): The USCIS is the agency that adjudicates benefits, including immigrant visa petitions and nonimmigrant petitions, including Hs, Ls, and Os. USCIS has confirmed to AILA Liaison that it will be operating if there is a government shutdown, except for the E-Verify program.

Department of State (DOS): The DOS is the agency that issues nonimmigrant and immigrant visas through US consular offices abroad. If there is a shutdown, the result for DOS will likely be the same as it was in the 1996 government closing. Then, the only visas that were issued were for some diplomats and for “life or death” situations. As DOS is wont to say: “A really, really important business meeting is not life or death.”

Comment:

This means that visas will not be issued during the shutdown, which can be very problematic for foreign nationals who need visas to travel to the United States. Visa appointments that have already been scheduled will likely be canceled, and those people whose visas have expired will be stranded until the shutdown ends.

Customs and Border Protection (CBP): CBP is the agency responsible for immigration and customs inspection stations at U.S. airports and border crossings. Inspection and law enforcement are considered “essential personnel,” though staffing may be more limited than usual. The borders will be open, and CBP is unsure of how the shutdown will affect the processing of applications filed at the border.

Department of Labor (DOL): The DOL is the agency that adjudicates PERM applications and H-1B and E-3 Labor Condition Applications. DOL is making plans for a possible shutdown. If there is a shutdown, DOL personnel will not be available to respond to e-mail or other inquiries. We do not know at this point whether the iCERT/PERM electronic systems would continue to function. However, because the systems require funding to run, one should assume that they would not be available.

Comment:

If those systems are in fact unavailable, then we will not be able to file H-1B and E-3 petitions, which require certified labor condition applications before the petitions can be submitted. It also means that PERM applications cannot be filed. It is unclear what impact that may have on time-sensitive cases which must be filed before the recruitment goes “stale,” or which must be filed to preserve eligibility for extensions of H-1B status beyond six years.

H-1B Cap Count

On a different note, the USCIS has advised that as of April 7, 2011, it had received 5,900 H‑1B regular cap petitions, which are counted against the 65,000 annual limitation, and an additional 4,500 petitions counted against the 20,000 numbers available for U.S. advanced degree holders.