Practice Alert

Prepare Now for a Possible DOL Shutdown

AILA (American Immigration Lawyers Association) is reporting that there may be a Department of Labor Shutdown as of 10/1/2015 if the budget is not approved before then - which would have dire consequences to PERM, Prevailing Wage Determination, Labor Condition Application processing, etc.

AILA Doc No. 15092311 | Dated September 23, 2015

Though Congress is continuing to negotiate on the FY2016 budget, if no agreement is reached, no Continuing Resolution is passed, or no other stopgap method implemented, we will unfortunately be faced with a government shutdown on October 1, 2015, similar to that which occurred in October 2013 (AILA Doc. No. 11040730). While we are hopeful that this will not happen, and a legislative vehicle in the form of a Continuing Resolution to avoid a shutdown is in play, the DOL Liaison Committee nonetheless reminds AILA members of steps that can be taken now to prepare for that risk.

OFLC functions are not "excepted" from a shutdown and its employees would be placed in furlough status should a lapse in appropriated funds occur. Consequently, in the event of a government shutdown, OFLC will not accept applications or related materials (such as audit responses) as of October 1, nor will it process those already received, including Labor Condition Applications, Applications for Prevailing Wage Determination, Applications for Temporary Employment Certification (H-2A/H-2B), or Applications for Permanent Employment Certification. Furthermore, DOL’s online systems (iCERT and PERM) will not be operational and will not accept PERM, LCA, or prevailing wage applications, and authorized users will not be able to access their online accounts.

Therefore, any critical PERM, H-2A, or H-2B applications that can be filed before October 1 should be filed. Any certified LCAs or prevailing wage determinations needed for filings after October 1 should be printed from iCERT so that they are available for use. If there is a shutdown, DOL would not have a functioning mailroom and would not be able to receive or process PERM audit responses or other applications received in the mail. While DOL made accommodations in 2013 to accept applications that were affected by the shutdown, there is no way to be certain it will do so again (AILA Doc. No. 13110143).