by on Sophie Alcorn, attorney, author and founder of Alcorn Immigration Law in Silicon Valley, California, is an award-winning Certified Specialist Attorney in Immigration and Nationality Law by the State Bar Board of Legal Specialization. Sophie is passionate about transcending borders, expanding opportunity, and connecting the world by practicing compassionate, visionary, and expert immigration law. Connect with Sophie on LinkedIn and Twitter.
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Dear Sophie,
Since our new hire wasn’t selected in the H-1B lottery, we are in the process of getting a cap-exempt H-1B visa. Our new hire is currently living abroad.
How will the H-1B visa process be affected if the U.S. government shuts down?
— Exceptional Employer
Dear Exceptional,
Glad you are pursuing a cap-exempt H-1B to help your new hire! Very compassionate (and business-savvy) of you to find a solution for synchronous, in-person working after this individual wasn’t selected in the lottery.
Fingers crossed that we can avoid a shutdown, particularly since many federal agencies that deal with visa and green card processes are still trying to make their way through backlogs stemming from the pandemic, staffing shortages and growing visa and green card demand during the past few years.
If Congress fails to enact either funding legislation or a continuing resolution signed by the president by October 1, then the federal government will shut down. (Whether they continue to work or are furloughed, federal employees do not get paid during a government shutdown but receive back pay once funding is restored.)
Getting an H-1B specialty occupation visa and entry to the United States for a new hire living abroad requires approvals from the U.S. Department of Labor (DOL), U.S. Citizenship and Immigration Services (USCIS), U.S. Department of State (DOS), and U.S. Customs and Border Protection (CBP).
Here is a rundown on which agencies and immigration-related processes will get a red light and which will get a green light if a government shutdown happens so you can see how you and your H-1B candidate will be impacted based on where you are in the process.
Department of Labor: Red light
Without funding legislation or a continuing resolution, the Department of Labor (DOL) would shut down since it relies on federal appropriations and its staff are not considered essential workers and are therefore furloughed. (Workers who are furloughed receive back pay once federal funding is restored.)
If you have not yet filed the Labor Condition Application (LCA) for the H-1B with DOL or just recently filed it and haven’t yet received approval, then you won’t be able to move forward with the H-1B application since an approved LCA must be included with the H-1B petition submitted to the U.S. Citizenship and Immigration Services (USCIS). (The DOL usually takes seven to 10 days to process an LCA.)
LCA applications for the E-3 specialty occupation visa for Australians and PERM labor condition applications for EB-2 advanced degree or exceptional ability green cards and EB-3 green cards for skilled professionals would also grind to a halt.
U.S. Citizenship and Immigration Services: Green light (mostly)
The USCIS, an agency within the U.S. Department of Homeland Security (DHS), is primarily funded through fees, so it has generally continued operations during previous government shutdowns. That means USCIS offices remain open, appointments and interviews continue as scheduled, and most petitions and applications continue to be processed.
Hopefully you’ve already received LCA approval from the DOL and are ready to submit the H-1B I-129 nonimmigrant visa application.
The few immigration programs that rely on federal appropriations would grind to a halt with a federal shutdown, including the E-Verify system, the EB-5 immigrant investor regional center program and the Conrad 30 J-1 visa program for physicians.
E-Verify is the online system through which employers register their companies and electronically confirm that their employees are legally eligible to work. Since the E-Verify system would stop during a government shutdown, employers cannot enroll in E-Verify, which is required for hiring F-1 students on OPT (optional practical training) or STEM OPT; view or take action on any case; or edit company or security info.
During previous shutdowns, the USCIS has suspended the three-day rule for E-Verify case creation and extended the period for resolving tentative nonconfirmation (TNC) cases. The three-day rule is the deadline by which an employer must complete Form I-9 (Employment Eligibility Verification) when a new employee is hired.
A TNC requires an employer to provide additional information because the info already provided differs from the U.S. Department of Homeland Security, which oversees the USCIS, and the Social Security Administration records.
Employers must continue to complete Form I-9 for each person they hire in the U.S. and make sure all I-9s for existing employees remain current. Below, I talk about the U.S. Immigration and Customs Enforcement (ICE), which issues NOIs (Notices of Inspection) to employers to conduct I-9 inspections.
Department of State: Green light (mostly)
The Department of State (DOS) oversees the U.S. embassies and consulates, which process visas, green cards, and passports. Like the USCIS, DOS operations in the U.S. and abroad are primarily funded through fees, so operations would continue during a government shutdown as long as funds are available.
That means consular offices will continue to process applications, including the online nonimmigrant visa and immigrant (green card) applications, and issue visa stamps. Consular offices will remain open for appointments and interviews.
A government shutdown could add to ongoing delays and an extended shutdown could result in curtailed services.
If your prospective new hire is waiting for an H-1B visa interview or interview waiver and is approved, then they should be able to proceed since a U.S. government shutdown would not impact any other immigration agency from this point onward.
U.S. Customs and Border Protection: Green light
Like FBI and DEA agents, U.S. military personnel and air traffic controllers, U.S. Customs and Border Protection (CBP) employees are considered essential workers. As essential workers, they must report to work.
That means airports and other ports of entry will continue to operate during a government shutdown, so if your new hire has their H-1B visa stamp in their passport, they can enter the United States provided that the CBP officer at the airport or port of entry that is used approves their entry.
Immigration and Customs Enforcement: Green light
Immigration and Customs Enforcement (ICE) staff are also considered essential workers. ICE won’t have a direct impact on the process of bringing your new hire to the U.S., but you will be required to fill out a Form I-9 for your new employee, which ICE officials may ask to inspect at some point.
ICE is an agency within the DHS and oversees immigration enforcement, including Form I-9 inspections, and removal operations. It also oversees the Student and Exchange Visitor Program (SEVP) for F-1 and M-1 student visas and J-1 cultural exchange visas and their corresponding dependent visas — F-2, M-2, and J-2, respectively.
If we end up with a government shutdown, contact your congressional representatives, tell them your company’s story and urge them to resolve the impasse.
You’ve got this!
— Sophie
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