The Federal Government Reopens: An Update on Immigration Processing

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
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The government officially reopened on October 17, 2013 after a shutdown that started on October 1. The shutdown had substantial immigration consequences for employers (which were explained in detail here and here). At least some of these issues have been resolved as outlined below.

  • The U.S. Department of Labor’s Office of Foreign Labor Certification (OFLC) maintains the web portal for the acceptance and certification of Labor Condition Applications (LCAs), which are required in order to file an H-1B or E-3 visa petition with the U.S. Citizenship and Immigration Services (USCIS). The web portal was taken down during the government shutdown, but is back up as of October 18, 2013. However, employers will continue to experience delays in filing H-1B or E-3 petitions until LCAs are certified.
  • During the shutdown, H-1B petitions were not accepted by USCIS without a certified LCA. USCIS has issued guidance stating that if it can be shown that the primary reason for failing to timely file an extension of stay or change of status request (for H-1B, H-2A, or H-2B visa petitions) was due to the government shutdown, USCIS will consider the government shutdown as an extraordinary circumstance and excuse the late filing, if the petitioner meets all other applicable requirements.
  • The OFLC also maintains the web portal for accepting PERM Labor Certification Applications. For many applicants, a PERM application is the first step in employment-based permanent residence (“green card”) sponsorship. The PERM website is back up but also continues to be slow.

Possible continued delays in the processing of LCAs and PERMs may be expected as a result of these systems being down and a growing backlog of cases yet to be processed. We will closely monitor the situation. Please continue to work with your Ogletree Deakins immigration contact.

Also of interest to employers: USCIS has restored the system functionality of E-Verify, which was off-line during the government shutdown. USCIS has also released updated information regarding E-Verify.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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