Now that the US government is reopen, the US Department of Labor’s (DOL) iCert website is now “functional,” although as slow as honey. The DOL has jurisdiction over the Labor Condition Application (LCA), which is required for the H-1B petition, and also for issuing prevailing wage (PW) determinations, which are required for the PERM labor certification application, the first stage of the green card process for most employment-based foreign workers. During the shutdown, some H-1B workers were not able to file timely extension petitions to maintain their status. However, USCIS, which adjudicates the H-1B petitions, has stated that it will accept late-filed petitions under the extraordinary circumstances exception, since the employers and H-1B employees should not be penalized for the government’s delays.
The DOL has not yet issued its policy on how to deal with PERM labor certification applications that employers were unable to file for which the recruitment became stale during the shutdown. Upon filing a PERM application, the recruitment must have transpired between 30 and 180 days (except for one form of recruitment, and not including the notice of posting or the job order). To restart a PERM application is very costly because of the recruitment requirements. Also, the employer can be greatly harmed if it needs to restart a PERM case, since qualified US workers may apply for the position the second time around, which is the death knell for the PERM case. The employee can be harmed as well if her only way of obtaining more than six years in H-1B status is by showing that a PERM application was filed by the end of her fifth year in H-1B status.
Let’s hope that the shutdown shenanigans do not rear their ugly head this January when the budget must be renegotiated.