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Immigration Issues Lingering from Government Shutdown

Now that the government has reopened, there are a few lingering immigration related issues. Today, USCIS issued this advisory concerning work visa applications:

We would like to share the following information on Form I-129 H-1B, H-2A, and H-2B petitions.

If an H-1B, H-2A, or H-2B petitioner submits evidence establishing that the primary reason for failing to timely file an extension of stay or change of status request 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.

(Although not mentioned in the advisory, it presumably applies to E-3 visas that also require Labor Condition Applications.)

During the shutdown, the US Department of Labor (DOL) was not processing online Labor Condition Applications required for E-3 and H-1B applications, or Labor Certification Applications (PERM) for permanent residence applications and H-2A and H-2B applications. The American Immigration Lawyers Association (AILA) had inquired about whether USCIS would accept petitions without DOL certified documents, and not hearing back from the agency, obviously many people were in limbo. DOL’s systems are now back up and running.

E-Verify was another online system that employers could not use during the shutdown to document the work permission status of their employees. However, they were still required to complete form I-9s. Those in turn were impacted by those employees whose primary evidence of work authorization along with an identity document were Social Security numbers, as the Social Security Administration was not issuing new numbers. This particularly impacted newly arriving H-1B workers with October 1 start dates when the shutdown began. Employers should now proceed to update their verification forms and systems as soon as possible. USCIS has issued this alert for employers. And, here are some useful FAQs for employers.

The immigration courts were closed during the shutdown at least for non-detained cases. EOIR is reporting today that:

Non-detained cases scheduled for 10/17/13 will be rescheduled for a future date. Effective 10/18/13, all non-detained case dockets will proceed with all scheduled cases. Any filing that was due during the time the court was officially shut down will not be considered late if the court receives the filing within seven business days from today. All cases set for a master calendar hearing that did not go forward during the shutdown will be rescheduled to the next available master calendar hearing date. All cases set for an individual calendar hearing that did not go forward during the shutdown will be rescheduled to the next available individual calendar hearing date.