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How Would a Government Shutdown Impact Employment-Based Immigration Filings

Government funding is set to expire on September 30, 2021 at midnight unless a short-term government funding bill is passed in time. In the event of a government shutdown, applications and petitions may continue to be filed with the U.S. Citizenship and Immigration Service as this is a fee-funded agency. However, Department of Labor activities involved in immigration filings are not fee-funded. This means that the FLAG and PERM systems would be inaccessible. Labor Condition Applications for H-1B, H-1B1, and E-3 visa categories would not be able to be submitted and those already filed would not be certified during the shutdown. Further, employers would be unable to submit prevailing wage requests and PERM labor certifications, and those that are pending would not be processed.

The Department of State, which is responsible for visa applications at U.S. consulates and embassies abroad, would continue to operate as these are also fee-funded activities. CBP would also continue to operate ports of entry for inspection of incoming travelers as these personnel are considered essential. The SEVIS system operated by ICE for F-1 students would also remain in operation because of the funding provided by fees.

The main impact for employment-based immigration filings would likely be for H-1B, H-1B1, or E-3 petition filings where the current status is expiring and an LCA cannot be obtained. In the past, USCIS has accepted late filings in this situation once the government reopened and an LCA could be obtained.