Businesses Can Take Steps Now to Minimize Negative Impact in the Case of a Government Shutdown

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By Alexandra LaCombe

 

While the struggle continues between Republicans and Democrats to avoid a government shutdown on October 1 or December 11, nervous employers don’t have to sit idly and wonder how bad their organization would be impacted if it does indeed happen.

American corporations that need highly skilled foreign workers to fill vacant jobs can take steps now to try to ensure business flows as usual if the Department of Labor suspends immigration operations in a government shutdown. One of those steps is to have a “Plan B.”

If Congress cannot agree to pass a temporary funding measure by September 30, the nation’s immigration operations would likely be managed as they were during the 2013 shutdown.  Possible actions include the DOL’s Office of Foreign Labor Certification suspending operations. That means no prevailing wage requests or applications for temporary or permanent labor certification would be processed, as the online systems would not accept these applications and the agency would also be unable to process submissions by mail.

The first steps employers with a present need for LCAs (Labor Condition Applications required for nonimmigrant petitions) should consider is filing now – not tomorrow – so that an LCA can be in their hand before a shutdown deadline date. This is critical for H-1B, E-3 and H-1B1 employees who require a new petition or an extension of stay filed in the coming weeks.

Employers should consider filing multi-slot LCAs where there is a need for more than one worker in an occupation at a specific worksite. This can provide flexibility to respond to timely H-1B needs, such as the relocation of H-1B employees to new worksites and the onboarding of new hires porting from H-1B employment with another organization.

Employees should also know the E-Verify system would not accept or process employment verification queries during a shutdown.

The potential mess doesn’t end there. U.S. Citizenship and Immigration Services’ “SAVE” system, which verifies immigration status so applicants can receive benefits, could also be affected.  That would mean foreign nationals applying for driver’s licenses and other state or federal benefits face delays.

Over at the Department of State, visa applications would be processed as long as filing fees remain available to fund consular operations. However, a lengthy shutdown could deplete fee funding and the agency could halt visa processing or limit it to emergency cases only. Foreign nationals needing a new visa should submit their application as early as permitted by the relevant consulate.

With all the unknowns, it’s important for businesses to plan for worst case scenarios. Preparation now can avert disaster later.

If you need assistance with this, or any other employment/labor issue, please contact the author, Alexandra LaCombe, at (248) 649-5404 or alacombe@fragomen.com. Alexandra  is a Member of the Legal Affairs Committee of Detroit SHRM and a partner at Fragomen Worldwide (a Resource Partner of Detroit SHRM). 

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. September 2015.