Sophie Alcorn, attorney, author and founder of Alcorn Immigration Law in Silicon Valley, California, is an award-winning Certified Specialist Attorney in Immigration and Nationality Law by the State Bar Board of Legal Specialization. Sophie is passionate about transcending borders, expanding opportunity, and connecting the world by practicing compassionate, visionary, and expert immigration law. Connect with Sophie on LinkedIn and Twitter.
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Dear Sophie,
Since our new hire wasn’t selected in the H-1B lottery, we are in the process of getting a cap-exempt H-1B visa. Our new hire is currently living abroad.
How will the H-1B visa process be affected if the U.S. government shuts down?
— Exceptional Employer
Dear Exceptional,
Glad you are pursuing a cap-exempt H-1B to help your new hire! Very compassionate (and business-savvy) of you to find a solution for synchronous, in-person working after this individual wasn’t selected in the lottery.
Fingers crossed that we can avoid a shutdown, particularly since many federal agencies that deal with visa and green card processes are still trying to make their way through backlogs stemming from the pandemic, staffing shortages and growing visa and green card demand during the past few years.
If Congress fails to enact either funding legislation or a continuing resolution signed by the president by October 1, then the federal government will shut down. (Whether they continue to work or are furloughed, federal employees do not get paid during a government shutdown but receive back pay once funding is restored.)
Getting an H-1B specialty occupation visa and entry to the United States for a new hire living abroad requires approvals from the U.S. Department of Labor (DOL), U.S. Citizenship and Immigration Services (USCIS), U.S. Department of State (DOS), and U.S. Customs and Border Protection (CBP).
Here is a rundown on which agencies and immigration-related processes will get a red light and which will get a green light if a government shutdown happens so you can see how you and your H-1B candidate will be impacted based on where you are in the process.
Department of Labor: Red light
Without funding legislation or a continuing resolution, the Department of Labor (DOL) would shut down since it relies on federal appropriations and its staff are not considered essential workers and are therefore furloughed. (Workers who are furloughed receive back pay once federal funding is restored.)
If you have not yet filed the Labor Condition Application (LCA) for the H-1B with DOL or just recently filed it and haven’t yet received approval, then you won’t be able to move forward with the H-1B application since an approved LCA must be included with the H-1B petition submitted to the U.S. Citizenship and Immigration Services (USCIS). (The DOL usually takes seven to 10 days to process an LCA.)
LCA applications for the E-3 specialty occupation visa for Australians and PERM labor condition applications for EB-2 advanced degree or exceptional ability green cards and EB-3 green cards for skilled professionals would also grind to a halt.
U.S. Citizenship and Immigration Services: Green light (mostly)
The USCIS, an agency within the U.S. Department of Homeland Security (DHS), is primarily funded through fees, so it has generally continued operations during previous government shutdowns. That means USCIS offices remain open, appointments and interviews continue as scheduled, and most petitions and applications continue to be processed.
