The US Citizenship and Immigration Services (USCIS) has just announced that if the primary reason for failing to timely file an H-1B, H-2A, or H-2B extension of stay or change of status request was the result of the government shutdown, the USCIS said it will consider the government shutdown as an extraordinary circumstance and excuse the late filing, provided that the case meets all other applicable requirements. Filing a nunc pro tunc petition may help you avoid difficulty in getting your H-1B visa approved.
The recent government shutdown has caused H visa petitions to be delayed because the US Department of Labor (DOL) stopped processing Labor Condition Applications (LCAs), which are required for the H-1B. The DOL has also stopped processing PERM, which is required for the H-2A and H-2B. In order to file the H visa extension of stay or change of status with the USCIS, the petition that is submitted must include an approved LCA or PERM from the DOL. Since the government shutdown started, petitioners were unable to get those approved LCAs and PERMs, and their H visa petitions were delayed as a result of the shutdown.
Here is the situation. For example, if a foreign national’s H-1B was set to expire on October 6, 2013, the person’s status would be extended automatically upon filing for an extension with the USCIS, so long as the extension was filed before the H-1B expired. If the person had already timely filed the LCA with the DOL, but was unable to get the LCA approved by the DOL, that person cannot timely file the H-1B visa extension with the USCIS because the extension would be rejected without an approved LCA.
In order for the USCIS to excuse your late filing, it will be necessary for you to submit evidence to establish that the government shutdown prevented you from timely filing your extension or change of status.
In the case of the example above, typically, the DOL will take five business days to approve an LCA. If your LCA was pending for a period longer than five business days, and was pending during the government shutdown, you can use this as evidence. The date of your H-1B visa expiration from the previous Form I-129 should be used as evidence. If the I-129 expiration date and the LCA filing date would allow a timely filed LCA five business days to be approved in time to file the H-1B visa extension, this establishes that your late filing was due to the government shutdown.
Even if you file your LCA petition after the government shutdown is over, you can still make a good case to the USCIS that your late filing should be excused. Just because the government is open, does not mean everything is business as usual and back to normal. During the weeks in which the government was shut down, LCA applications have been piling up. Once the DOL has completely reopened and regained normal functions, there may still be significant delays as the DOL attempts to deal with the resulting backlog of LCAs and PERMs. Dealing with the USCIS can be a complicated matter, and it is recommended that you seek competent and experienced legal counsel, especially when dealing with expired status.