Beware of shutdown, file immigration papers quickly: US attorneys


A shutdown of the US federal government was averted in September-end as President Biden signed a short-term spending bill that will fund the US government through November 17. Post this, no one is sure what the future holds.
While applications for those selected in the H-1B cap second lottery need to be filed by October end, immigration attorneys are advising in other cases also such as H-1B extensions, immigration related filings must be taken up at the earliest.
Robert Webber, immigration attorney, says: “If H-1B visa holders intend to switch jobs, they should accept the new job offer at the earliest, so that the new employer can get the Labour Condition Application (LCA) filed and approved before November 17.”
In the event of a shutdown, immigration related functions carried out by the Department of Labour (DOL), such as processing of LCAs, permanent labour certification and prevailing wage determining functions will be suspended. Employers in the US who sponsor H-1B employees are required to obtain a prevailing wage rate. The next step is filing a LCA at DOL’s processing centre. Only employers with certified LCAs can proceed with the process of obtaining an H-1B visa.
While visa application processing is undertaken by US Citizenship and Immigration Services (USCIS), which is fee funded and hence not as impacted by the shutdown, an employer can’t approach the USCIS without having finished the first two formalities at DOL.
“Since obtaining a LCA is an essential prerequisite for filing an H-1B extension, a shutdown at DOL will also impact the ability of employers to file timely H-1B status extensions before the expiration of a foreign worker’s status,” explains Cyrus D Mehta, a New York based immigration attorney.
A H-1B visa extension application can’t be submitted sooner than six months prior to the current expiration date. Webber says, “Sponsoring companies can get LCA filed for expirations through mid-May. For H-1Bs that expire after mid-May, 2024, the LCA can be carried out earlier.” He adds: If a sponsored employee’s H-1B expires on June 1, 2024, the LCA can be filed on October 2, 2023, and a six-year validity period of April 1, 2024 up to March 31, 2027 can be sought.


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