Government Shutdown Affects Employers with Foreign Workers

We sent an alert to our clients a couple of days ago when we felt that the Federal Government shutdown was imminent. We didn’t really expect it to happen but it did! The shutdown is unfortunately affecting US immigration services, so writing about action to be taken or postponed for pending immigration applications became imperative.

The websites of the US Department of Labor (US DOL) are no longer functional because it is considered a non-essential service. For employers, this means that if there is a current or potential employee who has to start, extend or transfer to a new employer, the employer will not be able to file a labor condition application for an H1B visa. The implication is that no application for the H1B visa can be filed with USCIS because that application has to be supported by a certified labor condition application (LCA). In the past, when there was a prolonged outage of the US DOL website, USCIS allowed employers to file with uncertified LCAs. We hope this happens with this shutdown, if it is prolonged.

For employees whose cases are pending audit on a PERM case; or if a prevailing wage determination or Form 9089 (PERM application) is either to be filed, or has been filed or is pending with the US DOL, no action will be issued by the agency until the shutdown has been terminated.

USCIS is functional because it is a fee-for-service agency. Biometrics collection is used for many immigrant applications, as well as for re-entry permits required for multinational employees who have a green card through employment but are currently stationed overseas. Biometric services for employees are also still being collected.

US Department of State consulates are currently functional, processing visa stamps and interviews. These services are supported by a mix of fees and federal budget allocation: if the shutdown is prolonged, or if there is a budgetary crisis, then there may be a suspension of services at the consulates for both US citizens and non-citizen consular services. The budgetary crisis could impact both employment-based and other categories of visa issuance, including visitor and business visas. If business travelers want to attend or plan to attend meetings and conferences in the US, please plan to obtain a visa while consular services are still available.

The Social Security Administration is open with limited service; issue of Social Security cards has been suspended. Hence, new visa-based employees will be unable to obtain new social security numbers, which could impact I-9 forms. Although collection of social security numbers is optional, if the employer is an E-verify employer, the employer is required to collect a social security number for work authorization verification. Certain federal and state contractors are also mandated to collect this information. To alleviate this problem, the 3-day rule for E-verify is suspended for those cases affected by the shutdown. Employers may not take adverse action against employees because of the employee’s E-verify interim status.

Wage payments to some new non-immigrants may be a problem because of the non-availability of the social security number. New J non-immigrant visa holders who cannot obtain social security numbers should approach their sponsoring agency for direction.

E-verify is unavailable during the shutdown. Consequently, USCIS, which administers the program, will not be issuing non-confirmation letters (TNC), and employers will be unable to verify work authorization of new employees. Current time to process TNCs has been extended; but the obligation to collect, maintain and process Form I-9 continues as an employer mandate.

Border security is an essential service – there will be no shutdown of services at the border, but travelers are expected to face slowdowns in screening and higher security.

US Passport services, which are a fee-for-service program, are not affected by the slowdown. Of course the severity of the impact will depend on the length of the shutdown. We will post updates as they become available.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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