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Staying Ahead of the Curve: Protecting Your H-1B, H-1B1, E-3, and PERM Cases During a Shutdown

Government shutdowns, those unsettling periods of fiscal impasse when the federal government ceases its non-essential operations, have become a recurring specter on the political landscape of the United States. These disruptions arise primarily from budgetary disputes between the executive and legislative branches of government, as well as a failure to enact appropriations bills or continuing resolutions to fund government operations. Government shutdowns are akin to a fiscal paralysis, compelling agencies and departments to furlough employees and curtail services, with profound repercussions extending far beyond the confines of Washington, D.C. While some shutdowns have been brief interludes, others have stretched on for weeks, engendering economic uncertainty, straining public services, and leaving countless individuals and businesses in a state of limbo. In this article, we will delve into how these events can impact your H-1B, H-1B1, E-3, and PERM cases, and offering strategies to protect your interests during such times of uncertainty.

PERM, Prevailing Wage, and Audits During a Government Shutdown

In the event of a government shutdown, the Department of Labor’s Office of Foreign Labor Certification may suspend its operations. This suspension will have significant implications for employers and foreign workers navigating the PERM labor certification process. Specifically, during a shutdown:

PERMs Delayed: The processing of PERM labor certification applications comes to a halt. Employers seeking to initiate or continue this crucial step in the employment-based green card process may face frustrating delays.

Prevailing Wage Requests Stalled: Requests for prevailing wage determinations, essential for the PERM labor certification process, will also be put on hold. This can disrupt employers’ ability to plan for recruitment efforts.

Audits and Responses on Hold: Any ongoing PERM audits or other submissions received by mail will not be processed. Employers awaiting audit responses or those in the midst of an audit will experience delays in the resolution of these cases.

It’s important to note that the Department of Labor typically does not announce whether it will offer a grace period for employers unable to file timely applications or audit responses during the shutdown. Although grace periods have been granted in the past, any potential extensions related to the shutdown are unlikely to be communicated until after the shutdown concludes.

For employers planning to file PERM applications for labor certification, it’s essential to be mindful of the recruitment process timelines. Where possible, to avoid the expiration of recruitment efforts, it’s advisable to initiate and submit your PERM application well in advance of October 1st. The PERM process involves various recruitment steps and a specific recruitment window, and the recruitment’s validity typically lasts for a limited period. By filing your PERM application early, you ensure that the recruitment efforts remain valid, allowing you to move forward with the green card sponsorship process without the need to reinitiate recruitment, which can be time-consuming and resource-intensive.

LCAs and Their Impact on H-1B, H-1B1, and E-3 Visas

In the context of a government shutdown, the processing of Labor Condition Applications (LCAs) becomes a critical concern for employers seeking to hire foreign workers under H-1B, H-1B1, and E-3 visa programs. Here’s what to expect:

LCA Processing Halted: The Department of Labor’s processing of LCAs, a prerequisite for these visa categories, will come to a standstill during a government shutdown. This can hinder employers’ ability to secure the necessary approvals for their prospective employees.

Online Applications Unavailable: The FLAG (Foreign Labor Application Gateway) website, which facilitates online LCA submissions, is likely to become inaccessible. Employers will need to prepare for the unavailability of this critical platform.

Uncertainty Surrounding Timely Filings: Employers may face uncertainty regarding timely LCA filings, which can impact the start dates of foreign workers. Planning and compliance efforts may need to be adjusted accordingly.

Communication on Extensions: Similar to the PERM-related concerns, the United States Citizenship and Immigration Service is not likely to provide immediate information on whether they will grant extensions or grace periods for employers unable to submit LCAs during the shutdown. Employers will need to stay informed once the shutdown concludes to assess the impact on their visa applications.

Navigating these challenges during a government shutdown requires careful planning and a proactive approach to minimize disruptions in immigration processes for employers and foreign workers alike.

For employers preparing for upcoming H-1B, H-1B1, and E-3 visa extensions, it’s crucial to plan strategically to avoid disruptions in your foreign workers’ employment status. One option to consider is the early filing of the Labor Condition Application (LCA) to ensure that it is certified before October 1st. Given the potential processing delays and uncertainties surrounding LCAs during government shutdowns or other unforeseen events, submitting your LCA ahead of time is a prudent approach. Ensuring the LCA is certified and ready before October 1st provides a buffer against any unexpected delays that could affect the timely submission of visa extension petitions. This proactive measure helps safeguard your foreign workers’ ability to continue their employment seamlessly and reinforces your commitment to compliance and workforce stability.

By: Emily Neumann

Emily Neumann is Managing Partner at Reddy Neumann Brown PC with over 15 years of experience practicing US immigration law providing services to U.S. businesses and multinational corporations. Emily has helped transform the firm from a solo practice to Houston’s largest immigration law firm focused exclusively on U.S. employment-based immigration.  She received her Bachelor’s degree in Biology from Central Michigan University and her Juris Doctorate degree from the University of Houston Law Center. Emily is a frequent speaker and has been quoted in Bloomberg Law, U.S. News & World Report, Inside Higher Ed, and The Times of India on various hot topics in immigration. She is a member of the American Immigration Lawyers Association and Society for Human Resource Management.

Reddy & Neumann has been serving the business community for over 25 years and is Houston’s largest immigration law firm focused solely on US. Employment-based immigration. We work with both employers and their employees, helping them navigate the immigration process quickly and cost-effectively.