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The State of Immigration–Post Shutdown

On Behalf of | Oct 23, 2013 | Firm News |

The government shutdown is over! (At least temporarily.) That certainly is good news all around. However, over at USCIS, the agency is grappling with over a sixteen-day backlog. Many may not realize that national parks and monuments were not the only things impacted by the impasse. Little publicized was the fact that untold numbers of immigration cases requiring Department of Labor paperwork/input were left stranded throughout the shutdown. While 16 days may seem like as short amount of time, those two weeks of inactivity will likely play havoc with our immigration system in ways that will only become apparent later on.

In acknowledgement of this problem, USCIS recently released guidance for employment-based petitions most likely to be affected by the shutdown. These include Form I-129 H-1B, H-2A, and H-2B Petitions.

“If an H-1B, H-2A, or H-2B petitioner submits evidence establishing that the primary reason for failing to timely file an extension of stay or change of status request was due to the government shutdown, USCIS will consider the government shutdown as an extraordinary circumstance and excuse the late filing, if the petitioner meets all other applicable requirements.”

This official guidance, if anything, is ominous proof of the ongoing difficulties that the agency, and all aliens who have filed these petitions, may face. In accordance with the guidance, there are some precautions that should be taken. Firstly, if you need to file late, then you should clearly state that fact (regardless of whether you are filing late in court or with USCIS). Failure to do so could be fatal to your case and lead to your applications being rejected as out of time. Clearly marking or denoting your case as being late due to the shutdown should allow staff to accept the late filing under the extraordinary circumstance exception. It is also a good practice to include a written explanation and/or a timeline. USCIS staff will likely be overworked for the near future, so do not expect them to realize something which may be obvious to you, but complicated to someone not familiar with the case.

Secondly, if your case has been delayed due to the shutdown and it is not one of the petitions listed above, consider making the same type of arguments as you would above. As an example, E-3 petitions require labor condition application filings, and as such, many were delayed by the shutdown. Even though they were not listed above, it may be worthwhile in requesting an exception under the same circumstances.

Third, accept that your patience will be tried. Mentally prepare yourself for long, frustrating delays. This is true whether it be visiting immigration court, calling the 800-customer service number, and/or receiving a response to your petition. Also be ready for technical difficulties, as government websites may become swamped by everyone trying to play catch up. If you cannot log onto the department of labor’s iCert portal, or if you cannot print a form I-94, then don’t panic. Document each time you made an attempt and try again later.

Organization and meticulous record keeping cannot be overstressed. In a climate where failure to file for benefits is due to the government, and not due to your own inaction, it is important to be able to demonstrate that every good faith effort was made to comply with deadlines.