Government Shutdown Freezes PERM Processing and Other Immigration Cases

October 1st, 2013

The US government shutdown will have a tremendous negative and deleterious effect on many types of immigration petitions and applications.  The most important and dire consequence is the freezing of the processing of PERM labor certification applications, prevailing wage determinations (required for PERM cases) and labor conditional applications (LCAs – required for H-1B visa processing)by the US Department of Labor (DOL).  There are many H-1B foreign workers who need to file extensions of their status to continue their employment in the US.  A certified LCA is required for filing an H-1B petition.  Hopefully, USCIS will allow for the filing of H-1B extension petitions without a certified LCA, especially where the foreign worker’s H-1B status is about to expire.

Also, many H-1B workers may only extend their H-1B status beyond the six-year limit if a PERM labor certification application is filed on their behalf by the end of their fifth year in H-1B status.  If the PERM cannot be filed for them, then they must hope that the Form I-140 immigrant visa petition is approved on their behalf before the end of their sixth year in H-1B status.  If a PERM application is audited, then this is highly unlikely, since an audit can lead to processing times of over 18 months.  Therefore, the suspension of PERM processing will lead many H-1B workers to lose their status in the US, causing grave harm to them and their employers.

US Citizenship and Immigration Services (USCIS) should be functioning at around 97 percent, but it relies on nonessential Federal workers and therefore USCIS’s processing times will most likely be negatively affected.

The US Department of State (DOS), which includes US consulates worldwide, may remain open for a few more weeks with alternative funding.  Once this funding is exhausted it is hard to imagine the impact of a freezing of the issuance of temporary visas to the US (business, student, H-1B worker, L-1A intracompany transferee, E-2 treaty investor, etc.).

The US immigration courts may only remain open for certain cases deemed important for national security, such as detained cases.