Content provided by Jon Baselice, Vice President, Immigration Policy, U.S. Chamber of Commerce
This is the current number of U.S. Customs and Border Protection Enforcement Actions for Fiscal Year 2023. This is 93,545 more encounters than last year’s record-breaking total of 2,766,582, and we still have more data to sift through for September.
According to a recent McKinsey report, this is the estimated percentage increase in the number of nonresidential construction workers that the U.S. will need to implement all of the infrastructure improvements under the Infrastructure Investment and Jobs Act. That equates to 300,000 - 600,000 new workers that would need to enter the construction sector of our economy every year for the next ten years. There is no way to meet these industry-specific workforce needs without providing construction companies more access to foreign-national workers.
The Impact of a Federal Government Shutdown on Immigration
The likelihood that the federal government will shut down is growing by the day. While the U.S. Chamber of Commerce continues to urge Congress to keep the federal government open, we wanted to provide insight into how a shutdown will impact businesses. Last week, the Department of Homeland Security published this thorough report that lays out what the Department will do in the event of a lapse in funding. Generally speaking, when the federal government shuts down, all but “essential” personnel are furloughed. Given the various immigration functions across several departments, each agency operates differently during a shutdown.
There are several immigration functions under the Department of Homeland Security that, historically, have not been as significantly impacted by a shutdown when compared with other federal agencies. The security mission at U.S. Immigration and Customs Enforcement has always been deemed essential. Relatedly, ICE’s Student and Exchange Visitor Program has historically continued operating during a shutdown, so you should expect very little in the way of disruptions with ICE.
U.S. Customs and Border Protection is another DHS component where the vast majority of its workers are deemed essential, and the disruptions seen during a shutdown have typically been limited. The Ports of Entry (POEs) will remain open, and if your business experiences disruptions in the near future, the proximate cause of those problems will be the ongoing surge in unauthorized migrant entries on the southern border. This is not to say that there will be no shutdown-induced problems for companies. In past shutdowns, companies have seen issues involving certain applications at the border where there can be disruptions. This is due to the fact that staff at certain POEs view the processing of visa applications at their ports as outside of the “essential” law enforcement and inspection functions of the agency.
U.S. Citizenship and Immigration Services is a fee-funded agency, and the vast majority of its adjudicatory functions will remain operational during the pendency of a shutdown. Historically, the only programs that have lapsed in the past are those that either receive federal appropriations, e.g. E-Verify, or pilot programs whose authorization was coterminous with federal funding. If the government shuts down, E-Verify will be inaccessible, as will the Conrad 30 program for J-1 physicians due to the lapse in authorization.
Similar to USCIS, the U.S. Department of State has consular functions and passport services that are fee-funded, thus their operations should continue. However, with respect to consular processing, there have been service interruptions in the past when visa-related revenues become insufficient to support the post’s consular operations. In the event that a government shutdown becomes prolonged, the likelihood that businesses will experience difficulties with State Department processing becomes more likely. When you add in the fact that many companies have confronted consular processing issues recently, it would not be surprising if several consular posts instituted limited processing capacities for diplomats and emergency circumstances.
The most likely source of immigration-related problems for businesses is the U.S. Department of Labor. Since DOL receives its appropriations from Congress, all of its immigration operations would be suspended when the federal government shuts down. OFLC’s web-based systems would be inaccessible, and case processing would be placed on hold. While filing deadlines related to DOL applications will likely be adjusted (as they have been in the past), you will be unable to file for permanent and temporary labor certifications, labor condition applications for H-1B and E-3 filings, and prevailing wage determinations. It is important to note that many of these DOL forms are prerequisites for filing many visa applications at USCIS. For businesses who have impending USCIS deadlines in the near future, we emphatically suggest that you file their DOL applications during the remainder of this week, if it is possible to do so, as it could help avoid significant delays in the future.