Alert: What Happens If the Government Shuts Down

To prevent a brief government shutdown, Congress enacted a continuing resolution (CR) on September 30, 2023. Through November 17, 2023, the CR provides 45 days of funding for the government. The CR allocates $16 billion for disaster relief, but excludes assistance for the Ukraine or negative border policy adjustments. Some federal agencies might shut down if the 12 budget bills or another CR required to keep the government operating until November 17 are not enacted and signed into law.

The 12 budget bills required to keep the government operating through FY2023’s conclusion on September 30, 2023, have not yet been enacted by Congress or signed by President Biden. By midnight (ET) on October 1, 2023, funding for agencies will expire unless these appropriations bills are completed or Congress agrees to a temporary continuing resolution (CR), which might lead to a shutdown of some federal operations.

General Shutdown Information: All employees are furloughed and prohibited from working if government agencies are forced to close due to a lack of funds. The exception is “essential” workers. The following is a summary of how the immigration-related agencies have worked in the past when there has been a shutdown. DHS has revised its instructions on a contingency plan and what tasks are deemed critical (or exempt) in front of a potential government shutdown in 2023.

DHS: DHS provided the following information regarding what would happen during a government shutdown:

Nearly three in four DHS employees – more than 185,000 people – would be required to continue working through a shutdown, without receiving a paycheck. Those working without pay include law enforcement officers, analysts, investigators, and disaster response officials conducting work such as:

• Safeguarding and securing our borders;
• Processing, detaining, and removing individuals that have unlawfully entered the United States
• Seizing illegal narcotics like fentanyl;
• Identifying, disrupting, and dismantling criminal operations that smuggle weapons, drugs, and migrants;
• Combating child exploitation and child predators;
• Identifying and arresting human traffickers;
• Conducting search and rescue operations;
• Responding to natural disasters;
• Preventing and coordinating responses to cyberattacks and threats to the federal government and other critical infrastructure; and
• Protecting U.S. government leaders and foreign dignitaries.

USCIS: Since USCIS is a fee-funded organization, operations will usually continue unabated in the event of a government shutdown. E-Verify, the EB-5 Immigrant Investor Regional Center Program, Conrad 30 J-1 physicians, and non-minister religious employees are examples of programs that get allocated funding but are halted or otherwise disrupted.

• 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: Operations relating to visas and passports are fee-funded, therefore they are often unaffected by a shortfall in funding. Even yet, if there are not enough fees to cover costs at a specific station, consular activities may be affected. Posts will typically only handle “life or death” crises and diplomatic visas in this scenario.

CBP: Personnel for inspection and law enforcement are deemed “essential.” The processing of passengers will continue and ports of entry will remain open, although there may be delays in the processing of applications submitted at the border.

ICE: ICE enforcement and removal activities will continue, and during a shutdown, ICE attorneys usually concentrate on the detained docket. Since SEVP is supported by fees, the ICE Student and Exchange Visitor Program (SEVP) offices are unaffected.

EOIR: During a delay in legislative financing, immigration court proceedings on the detained docket will continue, but non-detained docket cases will be rescheduled for a later time when money is restored. All filings will be received by courts having detained dockets, but only those files involving detained dockets will be processed. Courts that solely have non-detained dockets won’t be available to the public and won’t take files. For rescheduled hearings, courts should send respondents’ or record-keeping representatives an updated notice of hearing. Members can inquire about guidelines unique to their local courts with their local chapters. The Family Expedited Removal Management (FERM) program and credible fear evaluations are expected to be designated as critical cases and will likely continue during a shutdown, despite the fact that EOIR has not yet provided any advice in these areas.

DOL: In the case of a government shutdown, the OFLC would stop processing all applications, and staff would not be accessible to answer emails or other communications. The FLAG and PERM web-based systems of the OFLC would not be available, and BALCA dockets would be suspended.

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

This article, under no circumstances, acts as legal advice; therefore, for any immigration questions, please contact your Attorney or the Ahluwalia Law Offices, P.C. (Team ALO).