Since the federal government’s shutdown that has been in effect since October 1st of this year, many employers wishing to employ foreign nationals in H-1B status have been unable to file H-1B petitions with the United States Citizenship and Immigration Services (USCIS). Specifically, a certified Labor Condition Application (LCA) issued by the Department of Labor is required with the filing of every H-1B petition. However, the Department of Labor’s Foreign Labor Application Gateway (FLAG) online portal at https://flag.dol.gov/ has been disabled and will not permit system users to prepare, submit, or retrieve certified LCAs.
USCIS has indicated on its website that it “will” exercise its discretion to accept H-1B petitions that were not timely filed because of the government shutdown. Specifically, USCIS notes on its webpage regarding “H-1B Specialty Occupations” that if an H-1B petitioner meets all other requirements and provides evidence demonstrating that the primary reason it did not timely file an H-1B petition with a request for an extension of stay or change of status was due to the government shutdown, USCIS will consider the government shutdown an “extraordinary circumstance beyond the petitioner’s control” as a favorable factor in determining whether to excuse the petitioner’s failure to file an H-1B petition on time.
USCIS’s dispensation appears to apply primarily to a situation where a petitioner’s H-1B petition is filed after the beneficiary’s period of stay has expired. It is not clear if the agency will apply similar flexibility to a situation where an H-1B petition is filed after a 60-day post-employment grace period has expired, or a situation where a PERM labor certification (also filed through FLAG) cannot be filed in time to secure a post-sixth year H-1B extension.
A petitioner filing an untimely H-1B petition after the government shutdown has ended that wishes for USCIS to excuse a late filing should cite the USCIS website announcement, provide a printout of the announcement, and specifically request that USCIS utilize its discretion to excuse the late filing. The petitioner should also make it clear that DOL’s disabling of the FLAG portal and its consequent inability to file an LCA or, if applicable, a PERM application, was the sole reason for the untimely H-1B petition filing. Petitioners that may be considering filing an H-1B petition before an expiration date without a certified LCA are strongly discouraged from doing so, since this will almost certainly result in the denial of the petition.
