The Department of Labor (DOL), Office of the Foreign Labor Certification (OFLC), has resumed processing of applications for both temporary and permanent employment programs despite the continued government shutdown.
The Foreign Labor Application Gateway (FLAG) system is now fully operational after activities were suspended due to the shutdown. This includes the resumption of processing of:
- Form ETA-9035, Labor Condition Applications (LCAs) required for non-immigrant visas, including H-1B, H-1B1 and E-3 filings.
- Form ETA 9089, Program Electronic Review Management (PERM) Labor Certifications for employment-based green cards.
- Form ETA-9141, Prevailing Wage Determinations (PWDs) required for the PERM process.
- Temporary Labor Certification under the H-2A and H-2B programs.
What this Means for Employers
Employers may now prepare and submit new applications for all of the above programs through the FLAG system. OFLC has also resumed processing of applications that were pending at the time of system suspension due to the shutdown. Employers should anticipate longer processing and response times as the DOL works through a backlog created by the shutdown and an expected surge in new filings.
The DOL has not yet issued guidance on how it will handle PERM applications where the recruitment period expired between October 1 and October 31 while the FLAG system was inaccessible. We expect further guidance to be released in the near future.
What Should Employers Expect?
While the FLAG system is fully operational, Employers are encouraged to promptly submit applications for time-sensitive H-1B, H-1B1, E-3, or PERM filings as it remains unclear if a continued prolonged shutdown could possibly trigger another system suspension. Employers should expect extended processing times and slower agency responses due to the accumulated backlog caused by the shutdown. While the DOL has not announced plans for PERM Labor Certifications that could not be timely filed between October 1 and October 31, it is likely that the agency will provide Employers with a grace period in which they may accept PERM applications with expired recruitment as they have done with prior government shutdowns. Gibney will provide further updates as additional information becomes available.
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