Why Immigration Won’t Shut Down
While a partial government shutdown is bound to cause serious disruption across the nine federal departments and many other agencies affected, the immigration system carries on more or less as usual. That’s because most immigration-related agencies are funded directly by user fees, and don’t depend on Congress (or taxpayers) for their budget.
Let’s look at how each relevant agency will avoid problems this time…
U.S. Citizenship and Immigration Services (USCIS) made clear in its official statement that the shutdown “does not affect USCIS’s fee-funded activities. Our offices will remain open, and all individuals should attend interviews and appointments as scheduled.”
Common forms will continue to be processed by USCIS officials (who won’t be furloughed or work unpaid like government employees in other parts of the Department of Homeland Security). For example, if you have already filed one of the following forms, or if you plan on filing soon, you shouldn’t expect any extra delays on account of the shutdown (unless you need a document from an agency that is affected — see below):
This is only a small sample of USCIS forms, of course, and it’s worth noting that some delays appear to be on the rise for long-term reasons that have nothing to do with the shutdown.
The State Department also collects user fees to fund its visa operations, so in a relatively brief shutdown, embassies and consulates are expected to conduct business as usual. In the past, however, long shutdowns (approaching one month) have sapped resources from the State Department as a whole, and led consulates to restrict visa processing activity to only emergency situations.
Likewise, while the State Department continues to accept green card applications (Form DS-260) through its online system, it’s possible that a very long shutdown could impede the agency’s ability to keep that website running.
That’s the upshot of the State Department’s official guidance: “Consular operations domestically and abroad will remain operational as long as there are sufficient fees to support operations. However, if a passport agency is located in a government building affected by a lapse in appropriations, the facility may become unsupported. The continuance of consular operations in such instances will be treated on a case-by-case basis by the Office of the Under Secretary for Management.”
Like applicants served by USCIS, however, green card and visa applicants filing with the State Department also face additional delays if they need information from an affected agency (see below).
For the most part, officers with U.S. Customs and Border Protection (CBP) are designated “essential” government personnel who do not get furloughed during a shutdown (although they may be compelled to work without pay). Border crossings and ports of entry stay open, and CPB officers continue to inspect visa holders as they enter the United States.
Student Visa System
The Student and Exchange Visitor Program (SEVP), a part of the Department of Homeland Security that handles most student visas, is also funded by user fees and relatively untouched by a government shutdown.
Employment-Based Visa System
Unlike the family-based immigration system, many employment-based visa processes (e.g. H-1B visas) can get delayed during some government shutdowns, because they depend on labor certifications from the U.S. Department of Labor (DOL). Employees of DOL are not designated “essential,” nor are they funded by user fees, so they would be furloughed and unable to work during a shutdown—except that this particular shutdown won’t affect the Department of Labor, since it’s not one of the departments whose funding is about to lapse.
Although the immigration system’s fee-funded operations largely won’t be affected by the shutdown, certain government agencies or their services that are affected can slow immigration processes down:
The Internal Revenue Service (IRS)
The timing of the shutdown is especially notable, considering that end-of-January kicks off filing season, the most important time of year for taxpayers. During the shutdown, key IRS services are unavailable, according to the IRS contingency plan. Those services include providing income tax transcripts, access to which, in the event of a shutdown, will be limited to “disaster victims applying for disaster loans.”
Many visitors to the IRS website have recently reported being unable to access Get Transcript, the online tool that allows users to request such records. Boundless suspects that this tool is currently inaccessible due to the shutdown.
As of January 3, 2019, a user requesting a transcript online or by mail would encounter the following message on the IRS website:
Why this matters: Green card and visa sponsors who cannot provide a copy of their federal income tax return to USCIS in order to prove sufficient income must provide a tax transcript as an alternative. Without access to that record, processing the green card or visa application will be delayed and, consequently, the applicant must wait longer to receive a decision.
New immigration policy
Federal agencies without funding can’t make progress on most regulatory changes while the shutdown is underway. And while agencies that do have funding can keep working on new regulations, any new developments won’t be known to the public. That’s because Federalregister.gov, Regulations.gov, and Reginfo.gov, websites that allow the public to keep an eye on the status of all pending federal regulations, will not be updated during the shutdown.
Why this matters: According to experts, the shutdown may simply delay the “effective dates” of pending regulations and the start of public comment periods (see our guide to the immigration rulemaking process for a list of pending immigration regulations). For better or for worse, the enactment of some new immigration policies come later than the administration originally planned.