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How the U.S. Government Shutdown Affects Employers and their Foreign National Workforce




by:
Pamela J. Mak
Rebecca B. Schechter
Greenberg Traurig, LLP - McLean Office

 
October 8, 2013

Previously published on October 7, 2013

As we head into week two with no end in sight to the congressional impasse, the effects of the federal government’s shutdown continue to take a toll on private industry. For employers, it is important for hiring leaders and human resources professionals to take note of how the non-operation of certain government offices affects the hiring process and foreign national employees. In addition, before placing affected foreign national employees on furlough, government contractors must consider the impact of such a decision on their workforce as a whole.

I-9 Employment Verification Process

For those employers using the (currently) voluntary, online employment verification program operated by the U.S. Citizenship and Immigration Service (USCIS), E-Verify is not operating during the shutdown. However, all employers must still complete Forms I-9 for its new hires. E-Verify employers should set the Forms I-9 aside for electronic submission to E-Verify when it operates again. E-Verify has suspended its “three-day rule” for submitting employment verification queries within three business days from the date of hire. Similarly, E-Verify has tolled the time period for resolving Tentative Non-Confirmations.

Even with these accommodations, E-Verify’s unavailability is still causing headaches. Employers utilizing electronic I-9 are experiencing issues with their systems because E-Verify is not operating. Because Forms I-9 still need to be completed for all new hires, some companies may have to return to paper Forms I-9 during the shutdown.

Need to Hire or Extend Status for H-1B Employees

Hiring new foreign national workers pursuant to the H-1B visa program or extending their H-1B work authorization is currently not possible during the shutdown. The Office of Foreign Labor Certification (OFLC) of the Department of Labor (DOL) is not processing Labor Condition Applications (LCAs), which must be submitted in support of petitions for new or extended H-1B status for employees before the petitions can be filed with the U.S. Citizenship and Immigration Service (USCIS). An individual seeking to work or continue their work in the U.S. pursuant to an H-1B visa cannot do so until the H-1B employer has filed an H-1B petition for them. New or extended H-1B petitions that already obtained a certified LCA from DOL and are pending with USCIS will be adjudicated. USCIS is a fee-based agency and has not been affected by the government shutdown.

Stakeholders are lobbying USCIS to accept H-1B filings with pending LCAs. Because employers are not able to even file LCAs at this point, this is not a universal fix. Employers should contact immigration counsel to discuss their options.

Need for Social Security Numbers

Employers onboarding workers transferring from abroad should be aware that the Social Security Administration (SSA) is not accepting or processing applications for Social Security numbers (SSNs) or replacement Social Security cards. Individuals do not need an SSN to start work, but they may be unable to obtain a U.S. driver’s license, open a bank account, or obtain other benefits.

Green Card Sponsorship

The process for sponsoring a foreign national employee for permanent residency via the DOL’s foreign labor certification application (also known as PERM) has also been put on hold by the shutdown. The OFLC is not processing Prevailing Wage Requests or PERM applications at this time. Employers should also be aware that the PERM recruitment process may be affected by the government shutdown. The pool of potential applicants will now include furloughed government workers. Also, the PERM process has clear and unforgiving timelines. The recruitment could become stagnant while the DOL is not operating. Employers who are in the PERM recruitment process should contact immigration counsel to determine the best way to proceed.

Government Contractors and Furloughs

Several government contractors have announced that they may need to place employees on furlough as a result of the shutdown. Before placing any employees on leave, it is important to review whether any foreign national employees would be included in a furlough. While temporary leave may be permissible for certain visa types, the H-1B and E-3 visa programs have specific regulations against placing employees on unpaid leave. The DOL would likely determine that placing an H-1B or E-3 worker on unpaid leave due to the furlough is the same thing as “benching,” or placing an employee in inactive status when the worker is between contracts or projects. The DOL requires that an employer must continue to pay its H-1B or E-3 employees or terminate them. Exempting H-1B or E-3 employees from unpaid leave due to the furlough may not a tenable solution, however, because the employer may face complaints of unequal treatment from its affected US workforce.

Guidance from DOL and USCIS is murky in this area and the solution really depends on a company’s specific circumstances. In the absence of specific guidance from the agencies, it is important for employers to contact immigration counsel to discuss consequences and strategies for making it through this difficult period.



 

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
 

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