Labor Immigration Law

United States Labor Immigration Law News and Analysis

U.S. Federal Government Reopens Today, October 17th – DOL Backlogs Expected

The 16-day long partial U.S. federal government shutdown has ended last night after both chambers of the U.S. Congress passed a (temporary) budget measure (more on this below) and, after the President signed it, reopened the U.S. federal government.  As of today, October 17, 2013, federal workers are expected to be on the job.   However, due to the 16-day shutdown and the late night order to reopen, it is expected that it would take some time (days or weeks in some cases) for federal agencies and operations to resume normal operations.     We have written over the past 2-3 week on the impact on immigration caused by the partial government shutdown and while we are happy to see the government resume operations, we expect that immigration-related services to be, at the very least, heavily backlogged for some time.

Department of Labor Likely to be the Major Cause of Immigration-related Delays

Many U.S. employment-related visas (immigrant and non-immigrant) rely extensively, at least during some portion of the process, on the Department of Labor (DOL) – for example, H-1B work visas require a Labor Condition Application (LCA) to be certified by DOL.   An initial stage of the employment-based green card is the filing and the approval of a prevailing wage determination by DOL, followed by the filing and approval of a PERM Labor Certification.    As we had commented over the past few weeks, DOL was severely affected by the shutdown with the majority of DOL’s workers being furloughed and many DOL electronic systems being shutdown over the past 16 days.

As of the time of publication of this article,  DOL’s electronic systems for LCA and PERM Labor Certification processing were still not operational.  We hope that as DOL IT workers trickle into work this morning, these systems will become operational.   Unfortunately, we also expect that these systems may be overwhelmed with traffic as many employers and their law firms (ours included) will rush to file all of the LCA and PERM Labor Certification applications which were put on hold over the last 16 or so days.   We hope that DOL’s systems will be able to accommodate the traffic and the demand — our general estimates are that there may be many thousands of LCA applications waiting to be filed.    With this in mind, we caution our clients and readers to exercise caution and patience in the first few days after DOL reopens.

In addition to the new rush of filings, DOL is already sitting on a number of applications which were filed and pending as of October 1st when the government closed.   This will only add to the backlog of applications.   All of this is likely to result to dramatic increase (at least and hopefully only short-term) in the processing times for LCA and PERM applications.    Even before the shutdown, PERM applications were experiencing some of the longest processing times for the past few years; the shutdown would not help.

USCIS’s E-Verify System Should be Back Online

The major impact on immigration caused by the government shutdown has been via the shutdown of DOL’s operations, as discussed above.    However, other immigration-related functions were also affected.   Most importantly, the E-Verify system should be back online soon (it was not as of the time of this article) and would allow employers to complete a number of pending (and delayed) employment verification checks.   During the shutdown, USCIS advised E-Verify employers that the ‘three-day rule’ for E-Verify cases will be suspended for cases affected by the shutdown.    Now that E-Verify is expected to go back online at any time,  employers must rush to complete these E-Verify checks.     An important note is that the fact that an employer did not have to do an E-Verify check during the shutdown period, does NOT affect the Form I-9 requirement — employers must still (and should have) completed the Form I-9 no later than the third business day after an employee started work for pay.

Careful Planning and Preparation for Delays and Backlogs Important

In light of what we expect to be delays and backlogs, especially at DOL due to the significant volume of new applications to be filed, we caution employers and applicants to anticipate and plan for delays.   We understand that many H-1B applications (especially extensions for H-1B petitions which are expiring) are held by DOL and it may cause H-1B petitions to expire without an ability to extend.   There are ways to handle a late-filed H-1B petition with USCIS and request a retroactive H-1B approval date due to these extraordinary circumstances.    But there are also cases where H-1B workers desperately rely on the filing (or approval) of a PERM application to be able to continue extending their H-1B beyond the six-year H-1B limit and in those cases, there may not be many options to “fix” the possible damage caused by the delay.

Another Shutdown on the Horizon?

The deal which the U.S. Congress reached last night to fund and reopen the government and raise the U.S. debt ceiling is, unfortunately, a short-term deal.   Under the current agreement, the government is funded through January 15, 2014 and the debt ceiling is lifted until February 2014 or shortly thereafter.    What this all means is that if Congress does not make a budge agreement over the next 2-3 months, it is entirely possible that there will be a similar government funding fight and a possible government shutdown on January 15, 2014, or only three months from now.     We hope this is not the case, but we still would like to caution our clients and readers to this possibility.

Conclusion

Over the past few weeks we have consulted with anxious employers and applicants whose immigration status and processes have been severely impacted by the shutdown.    With this in mind, while we are hopeful that the reopening of the government and DOL, specifically, would be smooth, we caution employers to consider alternatives if they or their employees rely on a time-sensitive action by DOL.    Our office is certainly happy to consult and provide suggestions.    Please feel free to contact us.   Our office would also continue to monitor developments and provide timely updates.  Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.

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This article is presented by the Capitol Immigration Law Group PLLC, an immigration law firm serving individual and corporate clients in the Washington, D.C. area and nationwide. We specialize in U.S. labor immigration law and we have successfully represented individuals from more than 30 countries and Fortune 100 companies. The article should not be used as a substitute for competent legal advice from a licensed attorney. For more information, please contact us.