Tuesday, October 1, 2013

Federal Shutdown Has Immediate Impact at DOL, E-Verify

From Fragomen.com, 10/01/2013

Department of Labor 
DOL's foreign labor certification operations have ceased and will remain suspended until further notice. DOL issued PERM and LCA certifications on Monday evening, but will not process any further cases to completion until after the shutdown concludes. When normal operations resume, employers should expect delays as the agency works through its case backlog. 

The PERM and iCERT systems are now offline and will remain so for the duration of the shutdown, but were briefly operational this morning and appeared to be accepting filings. It is not clear how applications submitted during this brief window of opportunity will be treated after the shutdown is over. Employers and their immigration counsel will need to monitor these cases closely after DOL operations resume, and should be prepared for the possibility that cases submitted today may need to be refiled later on.

Employers who filed PERM applications on Monday received DOL’s standard sponsorship questionnaire emails this morning, but will not be able to complete them until after the shutdown. 

Impact of DOL Shutdown on H-1B Filings 
Though USCIS will continue to process petitions during the shutdown, employers may not be able to file H-1B petitions because of the suspension of labor condition application (LCA) processing at the Department of Labor. A valid, certified LCA is a requirement for every H-1B petition. In the past, USCIS has relaxed its rules and accepted H-1B filings without certified LCAs when DOL operations have been suspended or delayed, but it has not yet announced whether it will do so during the present shutdown. Suspension of LCA operations will also affect the processing of E-3 and H-1B1 filings at USCIS Service Centers and U.S. consulates. E-3 and H-1B1 filings also require a valid, certified LCA.

U.S. Consulates 
Currently, visa services at U.S. consulates appear to be operating normally, but foreign nationals should submit visa applications and make visa appointments as soon as possible in case consular operations are affected by the shutdown later on. The State Department will use funding from application fees to support consular functions for the time being, but it is not clear how long these funds will remain available. Employers and visa applicants should be prepared for the possibility of future delays in the event that the shutdown persists for more than a few days and State Department needs to suspend or limit visa services. 

E-Verify Operations 
The E-Verify system is down for the duration of the federal shutdown. Employers will not be able to initiate E-Verify queries or resolve tentative nonconfirmations, and will not be expected to meet the usual E-Verify deadlines. However, employers must not take any adverse action against an employee whose employment eligibility verification cannot be confirmed in E-Verify due to the shutdown. 

All employers remain subject to the same I-9 obligations. E-Verify outage would not affect the deadlines that are applicable to Form I-9 completion. 

Other Government Benefits
The Social Security Administration has confirmed that it is not accepting or processing applications for Social Security numbers or replacement cards during the shutdown. Foreign nationals who are unable to obtain an SSN may not be able to apply for a U.S. driver's license, open a bank account or obtain other benefits. 

The SAVE system is operating during the shutdown. SAVE is the federal database used by government agencies -- including State Departments of Motor Vehicles -- to verify the immigration status of foreign nationals applying for benefits. Though foreign nationals could experience delays in driver's license applications and renewals for other reasons related to the shutdown, SAVE verifications should not be affected.