What Happens If the Government Shuts Down?
Unless certain appropriations bills are passed by the U.S. Congress and signed President Biden, or Congress agrees on a temporary continuing resolution (CR), funding for many government agencies will lapse by midnight (ET) on October 1, 2023, which could result in a shutdown of these agencies. When government agencies close for budgetary reasons, all but "essential" personnel are furloughed and are not allowed to work.
Based on past precedent, the below provided by the American Immigration Lawyers Association (AILA) helps provide information on how various immigration-related agencies handled prior shutdowns.
USCIS:
The USCIS is a fee-funded agency so if the government shuts down, it is generally business as usual. The exception to this is programs that receive appropriated funds – E-Verify, the EB-5 Immigrant Investor Regional Center Program, Conrad 30 J-1 doctors, and non-minister religious workers, which are suspended or otherwise impacted.
The EB-5 Immigrant Investor Regional Center Program should not be impacted by a shutdown as it was authorized through September 30, 2027.
The Special Immigrant Religious Worker Program will sunset on September 30, 2023, unless a CR or appropriations package is signed into law before that date.
USCIS has confirmed that employers may continue to use the new alternate document review process for remote Form I-9 document verification if E-Verify is temporarily unavailable due to a government shutdown.
In the past, when the government reopened, USCIS accepted late I-129 filings provided the petition was submitted with evidence that the primary reason for failing to timely file an extension of stay or change of status request was the government shutdown.
DOS: Visa and passport operations are fee-funded and thus are not normally impacted by a lapse in appropriations. Consular operations can nevertheless be impacted if there are insufficient fees to support operations at a particular post. In such a case, posts will generally only handle diplomatic visas and "life or death" emergencies.
CBP: Inspection and law enforcement personnel are considered "essential." Ports of entry will be open, and processing of passengers will continue; however, processing of applications filed at the border may be impacted.
ICE: ICE enforcement and removal operations will continue, and ICE attorneys will typically focus on the detained docket during a shutdown. The ICE Student and Exchange Visitor Program (SEVP) offices are unaffected since SEVP is funded by fees.
EOIR: Immigration court cases on the detained docket will proceed during a lapse in congressional appropriations while non-detained docket cases will be reset for a later date when funding resumes. Courts with detained dockets will receive all filings but will only process those involving detained dockets. Courts with only non-detained dockets will not be open and will not accept filings. Courts should issue an updated notice of hearing to respondents or representatives of record for reset hearings. While EOIR has not issued any guidance about credible fear reviews or cases in the Family Expedited Removal Management (FERM) program, these cases are likely to be categorized as essential and will likely continue during a shutdown.
DOL: The OFLC would cease processing all applications in the event of a government shutdown, and personnel would not be available to respond to e-mail or other inquiries. OFLC's web-based systems, FLAG and PERM, would be inaccessible, and BALCA dockets will be placed on hold.
CIS Ombudsman: The DHS Office of the CIS Ombudsman would close and would not accept any inquiries through its online case intake system.
Congressional Constituent Services: Some congressional offices may be closed during a government shutdown. Please contact the individual office for more information.