Clarity and Strength in Immigration Law

Government Shutdown and Immigration: How Was My Case Affected & What Are the Next Steps?

The Sumner Immigration Law team was thrilled that the US government reopened on October 17th. While USCIS was still open, the vast majority of our filings (employment-based filings) were impacted by the government closure. Here’s what happened, the long-term effects, and how you can proactively plan for the future to reduce stress and avoid status issues.

USCIS Was Open

USCIS is fee-based, meaning the filing fees that applicants and petitioners pay were used to keep the agency open. We were very grateful for that. Cases continued to be processed as normal and there were no shutdown-related delays associated with USCIS directly.

Department of Labor Was Closed

On the other hand, the US Department of Labor (DOL) was closed during the government shutdown. The DOL processes forms that are required for immigration-related filings:

–          Labor Condition Applications (LCAs) – The DOL processes the Labor Condition Application that the employer or their representative must file in connection with an H-1B filing. The certified (approved) LCA must be included with the H-1B filed with USCIS.

  • Even during the government shutdown, USCIS did not accept H-1B filings without the certified LCA. This means that during the government shutdown, it was not possible to file H-1B petitions unless the employer had a previously-certified LCA (certified before the shutdown).
  • As a result, employers were not able to file H-1B transfers and extensions.
  • In fact, many employers are still waiting for LCAs that were filed as long ago as 9/24/2013 (nearly a month ago!).
  • Once the government reopened, USCIS announced that it would accept untimely filed (late) change of status or extension of status H-1B petitions, if filed with documentation that it was late-filed due to the government shutdown, and if it is otherwise properly filed.
  • As of Monday, 10/21/2013, the iCert portal on which the LCAs are filed is still not working. The site was not up at all on Thursday, 10/17, and the site has been crashing and inaccessible since Friday, 10/18. DOL has been notified of the situation and is reportedly performing maintenance to support the surge in traffic.

–          Labor Certifications and Prevailing Wage Requests – Labor Certification Applications and prevailing wage requests are a key part of many employment-based permanent residence processes. These are also filed online via a DOL portal, which was also closed during the government shutdown.

  • DOL did not process Labor Certifications or prevailing wage requests during the government shutdown. The portals on which the labor certifications and prevailing wage requests are filed are active again now, but access is spotty at best, probably due to the volume of people trying to access them.
  • The government shutdown may further slow down processing times of both labor certifications and prevailing wage determinations. However, DOL should still continue to process the applications on a first-in, first-out basis.

 Proactive Planning for Peace

As you know, the government is reopen now but the current agreement only funds the government through January 14th, 2014. While we hope Congress prevents another shutdown in January, nothing is guaranteed. Therefore, if you need to file an H-1B transfer or extension in the coming months, we highly recommend that you prepare and file the LCA now so that it is certified and so that you can file the H-1B petition even if the government closes again. Likewise, if you need to file a labor certification in the coming months, plan to do that as soon as possible (adhering to the recruitment timeline requirements) to reduce the chances of delays.

The Sumner Immigration Law team is diligently preparing and filing cases that were affected by the government shutdown. If you need an efficient, experienced immigration team to get your case off the ground, please contact us today to set a consultation: info@sumnerimmigration.com