AILA’s recommendations on filing H-1B, PERM and other applications while DOL’s iCERT and PERM Websites are Shutdown

Federal Workers Protest Government Shutdown

Federal Workers Protest Government Shutdown (Photo credit: cool revolution)

The American Immigration Lawyers Association (AILA) has indicated that they are trying to obtain guidance from USCIS and US Department of Labor (DOL) about how attorneys should move forward in filing applications like the H-1B and PERM/Labor Certifications which have been affected by the DOL’s shutdown (resulting from the Federal Government’s Shutdown).

AILA does not have official guidance from the USCIS and DOL yet and indicates that there are “conflicting reports” regarding DOL’s ability to even accept mail.  For now, however, AILA recommends the following:

VIA AILA:

H-1B:

“• LCA Filed But Not Approved: If you have an H-1B petition that must be filed because an individual’s status is about to expire, consider filing the petition with a copy of the Labor Condition Application (LCA) submitted through iCERT. This would assume the LCA was saved prior to the shutdown. Be sure to include a cover letter, requesting in bold that they not reject the H-1B petition. Also consider including a print-out from DOL’s website reflecting inaccessibility of the iCERT system due to the government shutdown. The print-out should include the date and the banner line. Filing the H-1B extension using a tracked delivery method (e.g., U.S. Postal Service express or certified mail, FedEx, or UPS) will provide a postmark or other evidence of timely filing. Note that USCIS has not stated that it will accept the filing of an H-1B petition without a certified LCA, thus, it may also be necessary to re-file the H-1B petition on a nunc pro tunc basis when the government reopens.

• LCA Not Filed: If an H-1B petition must be filed and you have not yet filed the LCA with the DOL, consider filing the LCA by mail, with a request that the OFLC Administrator exercise discretion to allow for paper filing. According to a DOL FAQ, an employer who lacks Internet access and cannot electronically file an LCA may “petition” the Administrator for permission to file by mail. While the FAQ states that the OFLC Administrator must approve the request before the employer submits by mail, under the circumstances, a concurrent request for paper filing and the LCA itself may be warranted. File the LCA using the same tracked delivery method mentioned above, and then submit proof of that attempted LCA filing with the I-129. Similarly, the I-129 should be filed using a tracked delivery method. Again, note that USCIS has not stated that it will accept the filing of an H-1B petition without a certified LCA.

• Initial PERM Applications: If you have a PERM application that must be filed before recruitment goes stale, the prevailing wage expires, or to qualify for a one year H-1B extension under AC21, consider filing a paper version of the application. Consider submitting your application via U.S. Postal Service express or certified mail with return receipt or a private courier, and request proof of timely delivery (or refusal). Though DOL may reject your application, you will have evidence of the attempted filing. Be sure to retain a complete set of documents submitted. 

PERM:

• PERM Audit Responses: Similarly, if you have an audit deadline, consider filing your response via the U.S. Postal Service express or certified mail with return receipt requested or private
courier, in order to obtain proof of filing or attempted filing. DOL may refuse to accept delivery of your audit response, but at least you will have evidence that you attempted to comply with the deadline. Be sure to retain a complete set of documents submitted.

• PERM Sponsorship E-mails: For PERM sponsorship e-mails received but not responded to prior to the shutdown or sponsorship e-mails not received prior to the shutdown, as in the above circumstances, when dealing with a submission deadline, consider filing a paper version of the application using the U.S. Postal Service express or certified mail with return receipt requested or private courier, in order to obtain proof of filing or attempted filing. Though DOL may reject your submission, you will have evidence of your attempted filing.

Prevailing Wages:

• ETA 9141 applications are accepted and processed electronically via the iCERT system. As such, they are also unavailable for retrieval and filing.

BALCA:

• While not technically applicable to PERM or H-1B-related deadlines, the Office of Administrative Law Judges issued an order on October 1, 2013, automatically extending deadlines for
OALJ filings (including BALCA) which occur during the shutdown. Deadlines will be extended based on the number of days the government is closed. It may be helpful to include this order
with nunc pro tunc filings or other situations where agencies have discretion to accept a late filing.”

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