H-2A Notice: Potential Government Shutdown

The potential implications of a shutdown on H-2A applications

As you’ve undoubtedly heard through various media reports, the U.S. is facing a potential government shutdown if Congress fails to reach an agreement before funding runs out on September 30.

The bottom line

• A government shutdown will only directly impact the U.S. Department of Labor (DOL).

• All other agencies in the H-2A process (U.S. Citizenship and Immigration Services, the U.S. Department of State) are fee-funded and/or considered “essential,” and will continue operations during a shutdown.

• We anticipate that most H-2A employers will be unaffected by this year’s potential shutdown.

• There may be an impact H-2A employers with start dates in December or January, depending on the length of the shutdown.

• Some employers with late October or November start dates may also be affected, depending on the timing of their labor certification.

Agency-specific details

State Workforce Agencies (SWAs)

Although SWAs rely on substantial federal grant money, they are state agencies and are unaffected by federal funding issues. We anticipate that the SWAs will remain operational for purposes of U.S. recruitment and other services (e.g., housing inspections), although the SWAs’ access to the Foreign Labor Application Gateway (FLAG) system is likely to be impaired or precluded (see below).

Department of Labor (DOL)

With respect to DOL, which adjudicates H-2A labor certification applications, the agency relies on congressional appropriations to remain operational (although it charges a certification fee, the collected funds go back to the general Treasury and are not used to support the agency’s functions). In practice, this means that DOL would halt operations in the event of a shutdown and cease processing H-2A applications. This includes taking the FLAG system offline to prevent any electronic submissions or activities pertaining to the H-2A program.

Given the timing and the filing window for H-2A applications, this year’s potential shutdown would principally impact employers with a December or January start date of need. 

The last government shutdown (in 2018-2019) lasted 34 days. It is important to note, however, that this shutdown was the longest in American history and a statistical anomaly. Most shutdowns last less than one week, including two recent shutdowns during the Trump Administration.

• If we assume this year’s shutdown is consistent with historical norms, we expect minimal impact on H-2A filers, including those with December or January start dates. 

• If we assume worst case scenario (i.e., a prolonged shutdown like in 2018-2019), the likely result for employers with December or January start dates is a multi-week delay in worker arrival. There may also be some downstream impact on employers with March or April start dates due to processing backlogs.

Note: It is possible that DOL will accept the government shutdown as a basis for an “emergency filing,” shortening the application period to 45 days. This would conceivably allow affected employers to preserve their certified start date. We will keep you apprised of this potential option as events unfold.

U.S. Citizenship and Immigration Services (USCIS)

Fortunately, USCIS is fee-funded and does not rely on congressional appropriations for continued operation. Therefore, all service centers (including the California Service Center, which adjudicates H-2A petitions) will remain operational during a shutdown.

Accordingly, the impact on employers with start dates in October or November will depend on the timing of the labor certification. If the labor certifications are issued prior to the shutdown, we will be able to proceed to USCIS unabated. 

If the labor certification is delayed, however, a shutdown would prevent us from moving forward in the process. We would need to wait for DOL’s operations to resume before we would be able to file the visa petition.

Department of State (DOS)

The State Department’s Bureau of Consular Affairs, which oversees U.S. diplomatic posts worldwide, is fee-funded and considered to be an “essential” government function. Accordingly, we do not anticipate that the shutdown will have any adverse impact on consular appointments or worker processing.

In our assessment, the primary potential consular impact may be appointment availability. If there is a prolonged shutdown, employers impacted by the DOL shutdown may be forced to push back their start date, resulting in greater competition for appointments. This could cause a “ripple effect” that impacts employers with later start dates.

What’s next?

At this time, we can only speculate about the likelihood and length of a potential shutdown. As always, however, we will keep you apprised of any developments as they pertain to the H-2A program.