Government Shutdown Expected: H-1B Petitions and PERM Applications Will Be Impacted

It seems as if every year or so there is a threat of a U.S. federal government shutdown. Although a federal government shutdown is rare – the last one being in the Fall of 2013 and in 1995 prior to that – a shutdown not only cripples the nation’s capital but it also has a tremendous negative impact on companies throughout the U.S. and their foreign employees who are working pursuant to H–1B status. It also may affect the first step of the permanent resident process (PERM Labor Certification Application) for many foreign nationals. According to recent media reports, with the coming of the new federal government fiscal year (October 1, 2015), a government shutdown is potentially only a couple of weeks away.

How Will This Affect the H-1B Process?

H-1B extension petitions, H-1B amended petitions, H-1B change of employer petition (“transfers”) and H-1B cap exempt petitions will all be impacted if certified Labor Condition Applications (LCAs) cannot be obtained from the U.S. Department of Labor (DOL) prior to a government shut down and the extension, amendment or transfer is needed during the period of time in which the government may be shut down.

Prior to filing an H-1B petition, an employer must obtain a certified LCA from the DOL. It typically takes about 5 to 7 business days from the time of submitting the LCA online to the DOL until it is certified. The H-1B petition cannot be filed with the United States Citizenship and immigration Services (USCIS) unless there is a certified LCA. If you have foreign national employees working pursuant to H-1B status or will be hiring a foreign national based on an H-1B transfer or cap exempt H-1B, it is best to start the process as soon as possible and obtain the certified LCA as soon as possible so that the continued work authorization or transfer is not negatively impacted.

If an H-1B extension cannot be timely filed before the current H-1B expires, the H-1B foreign national will no longer have authorization to work in the United States and most likely be required to leave the U.S. causing significant disruption in the workplace as well as with the individual’s life.

How Will This Affect the Permanent Resident Process?

In many cases, the permanent resident process begins with the filing of a PERM Labor Certification Application with the DOL. One of the initial steps in the PERM process is the filing of a request for a prevailing wage determination with the DOL. This prevailing wage determination is typically needed in order to proceed with the recruitment process for the PERM application. For foreign nationals who are coming to the end of their six-year period of stay in H-1B status, the timely filing of a PERM application is very important. Thus, it would be best to file the prevailing wage request with DOL as soon as possible to help with potential delays.

Please contact the legal professional you work with at Maggio Kattar for more information on how your case(s) may be impacted.