USCIS on H1B Filings Delayed by Government Shutdown

The U.S. Citizenship and Immigration Services (USCIS) has issued a brief announcement regarding the acceptance of H1B petitions (as well as H2A and H2B petitions) that were filed late because of the recent government shutdown. The following discusses the application of these instructions when seeking relief for petitioners and workers who may otherwise face immigration complications related to submitting late-filed petitions requesting to either extend status or change to H1B status.

Background: Shutdown Halted DOL Processing of LCAs

As explained in the MurthyDotCom NewsBrief, Coping with LCA/H1B Delays During a Government Shutdown (17.October.2013), all H1B petitions must be accompanied by an approved labor condition application (LCA). The Department of Labor (DOL) is responsible for the LCA process. During the recent government shutdown (October 1-17, 2013) the DOL was neither accepting nor processing LCAs. As a result, many employers were unable to file H1B petitions in time for their employees (or potential employees) to avoid falling out of status.

Government Shutdown Deemed “Extraordinary Circumstances”

As a general rule, the USCIS will not approve a request to change or extend nonimmigrant status unless the applicant was in valid status at the time of filing the petition of application. In limited situations, however, the USCIS has discretion to forgive such a late filing. Under the regulations, the USCIS may only excuse a late filing if it can be demonstrated that the failure to timely file was due to “extraordinary circumstances beyond the control of the applicant or petitioner.” To that end, the USCIS announcement notes that the government shutdown is considered an extraordinary circumstance for the purpose of late-filed H1B petitions.

In addition to demonstrating that the government shutdown was the primary reason for the late filing, petitioners also will have to meet the other requirements for this discretionary relief. One of the key requirements is that the delay in filing be commensurate with the reason for the delay. Thus, when asking to be excused for a shutdown-related delay, it is important to be able to document the reasons for the delay, and to move forward promptly with the LCA process and H1B filing now that the government has reopened.

Conclusion

The USCIS policy announcement should help to address some of the disruption created by the government shutdown. Employers who have encountered H1B-related problems due to the shutdown will want to proceed promptly now that the DOL has resumed operations. The Murthy Law Firm is available to assist employers and H1B workers on how to best address and resolve such problems.

Copyright © 2013, MURTHY LAW FIRM. All Rights Reserved