While a government shutdown may not be imminent (at the moment), when one occurs, it has an impact on a vast swath of government duties and responsibilities, including in the immigration context. United States immigration laws, regulations, and agencies are exclusively federal, so a government shutdown does interrupt some immigration-related operations across the country that affect families, companies, employees, and ultimately millions of Americans. Partisan politics that result in shutdowns have endless real-world consequences immediately felt by our immigration system.
When the federal government shuts down, it does not cease all activity. Because many immigration programs are fee-based or fee-funded by applicants who desire a particular immigration-related benefit, those programs typically continue during a government shutdown. However, many programs and operations that depend on tax dollars come to an abrupt halt. While each government shutdown occurs in a unique environment and some differences might result in specific agency changes/closures that cannot be anticipated with certainty, here’s a general overview of the immigration-related impact of a federal government shutdown:
U.S. Citizenship and Immigration Services (USCIS): Because it is a fee-funded agency, USCIS generally stays open during a shutdown. The only exception is the E-Verify program, which is a tax-funded and freely offered Internet-based system that allows businesses to determine the eligibility of their employees to work in the U.S. Other USCIS services, such as processing a vast range of immigration applications, including employment-based cases, family petitions, work authorization, DACA renewals (at least for now), and asylum do continue.
Department of State (DOS): Generally, passport and visa operations at U.S. consulates and embassies around the world are not affected by a lapse in appropriations as they are fee-funded. However, operating status and funding could be affected, so keep an eye on that if a shutdown occurs. If visa operations are affected, U.S. consular posts usually only handle diplomatic visas and “life or death” emergencies.
Customs and Border Protection (CBP): Inspection and law enforcement personnel are considered “essential.” Ports of entry will remain open (both airports and our contiguous country entry points for Mexico and Canada). However, applications filed at the border may be impacted during a shutdown.
Immigration and Customs Enforcement (ICE): Enforcement and removal operations will continue in the event of a shutdown and ICE attorneys usually focus on the detained docket. The ICE Student and Exchange Visitor Program (SEVP) offices also stay open as the program is fee-funded.
Executive Office for Immigration Review (EOIR): The courts’ detained docket is typically considered an “essential function” and should continue to operate during a shutdown. Other immigration courts would most likely close, but could possibly still accept court filings, so check for notices from the appropriate EOIR court.
Department of Labor (DOL): The Office of Foreign Labor Certification (OFLC) would cease processing all applications. Personnel would not be available to respond to emails, inquiries, or otherwise provide support. OFLC’s web-based systems, iCERT and PERM, would be inaccessible and BALCA dockets would be placed on hold.
Office of the Citizenship and Immigration Services Ombudsman (CIS Ombudsman): The Office of the CIS Ombudsman would close during a shutdown and would not accept any inquires through its online case intake system.
For more information about the impact of a government shutdown, see AILA’s Practice Alert: What Happens if the Government Shuts Down?
Beyond the impact of a government shutdown on federal agencies and stakeholders, there’s a far larger impact though. Government shutdowns don’t make America look great. International companies and individual immigrants bring jobs, investments, and talent to the U.S. Employment-based immigration cases generally involve several of the agencies listed above, many of which would be affected by a government shutdown. If our immigration processes are unreliable and subject to indefinite closure, companies may choose to leave the U.S. or not invest here in the first place. And if our objective is to attract top talent in international industries, I can see how a shutdown doesn’t make America very appealing; individuals may select a more secure country to bring their expertise.
Internationally, a shutdown could have a devastating impact on our consulates and embassies. These posts not only process visa applications, but provide support to American citizens abroad. Changes and/or scale backs in operations and support would likely delay visa processing and issuance for those non-emergency, but still very important, cases such as: tourist visas, visas for relatives of U.S. citizens and lawful permanent residents, students, professionals, and countless individuals.
Our last long government shutdown was in October 2013; it didn’t reopen for 16 days. At the time, I was practicing in Phoenix, Arizona, and it was truly a bizarre state of affairs. Court dates were canceled, which delayed our clients’ cases that were already going on for years. American immigration courts have an extensive backlog and a shutdown only exacerbates that issue by delaying thousands of cases. While the detained docket would stay on schedule during a shutdown, that docket only represents a small fraction of the hundreds of thousands of active cases in EOIR.
A government shutdown is troubling for many reasons, and the immigration system is not immune to damage. Immigrants touch all aspects of American life. We work with them, we work for them, they are our friends and family, they are our neighbors, and they fundamentally represent the American Dream that makes our country great. Shutting down the government is a loss for Americans and ultimately, America.