Coping with LCA / H1B Delays During a Government Shutdown

Now that the U.S. federal government shutdown has thankfully ended, the U.S. Department of Labor (DOL) has resumed the processing of labor condition applications (LCAs). However, the bill to reauthorize funding for the federal government is only a stopgap, and is set to expire in mid-January. This means the potential for yet another shutdown in the near future remains. Therefore, employers and H1B workers would be wise to consider this possibility and take action now to avoid problems related to LCAs, should the DOL be forced to cease operations again.

Background: The Labor Condition Application

The LCA is tied to the regulatory requirements regarding H1B wage levels and other provisions intended to protect the U.S. labor market. The LCA includes an attestation by the employer, with the wage for the position and the specific job location. Each LCA is valid for a specific geographic region, known as a metropolitan statistical area (MSA), and a specific job category. An LCA must be certified by the DOL prior to filing an H1B petition with the U.S. Citizenship and Immigration Services (USCIS); an H1B petition submitted without a certified LCA is rejected by the USCIS mailroom and returned to the petitioner as an incomplete submission.

LCAs for H1B Extensions, H1B Amendments, and Employer Changes

During the shutdown, the DOL did not accept or process LCAs. Since it is necessary to have an LCA accompany every H1B filing, this created enormous problems for many employers and H1B workers. As the shutdown dragged on, more and more H1B workers were reaching the expiration of their existing H1B petition. Without an LCA, there was no way to properly file the extension of the worker’s H1B status.

The same problem applied to H1B workers who wished to change employers. In order for a new employer to file an H1B petition, the employer must have a certified LCA for the particular position and location. Similarly, a change of an H1B employee’s work locations or other material modifications related to an H1B worker typically cannot be done without first procuring a new LCA.

Option: Look for Existing LCAs

When faced with the inability to obtain new LCAs, one option is for the employer to check to see if there is an existing, unexpired LCA that can be used. It is common in the consulting context for the USCIS to issue H1B approvals for a shorter duration than requested. Many H1B approvals, therefore, expire prior to the expiration of the underlying LCA. In this event, if the position and location of employment are unchanged, the existing LCA can be used to support the extension request.

LCAs, while geographically limited, are valid for a particular MSA, not a single street address. Relocations within an MSA may be possible without obtaining a new LCA, if certain procedures are followed. It potentially is possible to even relocate slightly outside of the MSA in limited situations.

Also, while LCAs are limited to a particular job category and location, they are not limited to particular, designated employee. Therefore, if the need arises, employers may need to check for the existence of valid LCAs that were approved for prior employees, employees who have since been relocated, or employees who no longer hold H1B status. Even if the H1B petition for a prior employee has been revoked, the LCA may still be valid if the employer did not specifically request withdrawal.

Status Expiration May Force Change of Status

For H1B workers facing the imminent expiration of their H1B status during a shutdown, it may be necessary to consider any available options for requesting changes of status. While this would likely interfere with the ability to work, it may be necessary to avoid having to depart the United States. If a spouse holds a non-dependent status, such as an H1B or L-1, it may be possible to request a change of status to the appropriate dependent category, H-4 or L-2. There may be other options available, such as a change to B-2 visitor status. However, such a change of status request may be denied or create new complications, depending upon the circumstances. And, of course, by taking steps while the DOL remains in operation, the need to request a change of status can be avoided altogether.

Conclusion

Even though the USCIS continued to process petitions during this recent government shutdown, the temporary shuttering of the DOL created havoc within the immigration system. Employers and H1B workers should be proactive and take steps now to protect themselves in the event of another shutdown. The Murthy Law Firm is available to guide H1B workers and their employers on the actions to take to best avoid difficulties in the future.

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