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End to Government Shutdown Heralds Resumption of US Immigration Processing

As of October 17, 2013, the government shutdown in effect since October 1, 2013 has come to an end. The shutdown had negatively impacted immigration processing in matters handled by the Department of State, United States Citizenship and Immigration Services (USCIS), and, most significantly, the Department of Labor (DOL). During the shutdown, the DOL could not process Labor Condition Applications (LCAs), limiting employers’ ability to hire H-1B, H-1B1 and E-3 workers. DOL’s closure also prevented employers from processing prevailing wage requests or filing PERM labor certification applications, thereby completely preventing employers from starting the process of sponsoring foreign nationals for permanent residence (green cards).

As of today, the Department of Homeland Security (DHS) agencies that deal with immigration are fully staffed, including Immigration and Customs Enforcement (ICE), which has jurisdiction over E-Verify. With respect to E-Verify, USCIS has published detailed guidance, available here, on how employers should handle situations, such as tentative non-confirmations (TCN), that may have arisen during the shutdown.

The Department of State and consulates worldwide remained open during the shutdown, but processing of visa applications slowed considerably. We expect a ramp-up period to get through backlogs before regular processing times resume.

The DOL iCert portal, through which Labor Condition Applications and requests for prevailing wage determinations are filed, and the PERM application filing system remain unavailable as of this writing. Once DOL begins to accept these applications for processing, due to the backlog of cases, delays, as well as a potential iCert crash, are always possible.

Neither USCIS nor DOL has yet issued guidance to retroactively deal with the missed deadlines, lapses in immigration status, and other hardships experienced by employers and foreign nationals during this 17-day period. We will provide further updates as this information becomes available.

If you have a specific question about how the resumption of government services affects your company or your case, please contact your Mintz Levin attorney.

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Susan J. Cohen

Member / Founder and Chair Emeritus, Immigration Practice

Susan J. Cohen is Chair of Mintz's Immigration Practice and a nationally recognized Immigration lawyer. She helps corporate clients manage immigration challenges. Susan is an American Immigration Lawyers Association (AILA) member and she's contributed to state and federal immigration regulations.

Miles Roeder