USCIS Flexibility Regarding Late-Filed Employment-Based Petitions

The government shutdown that recently ended was the longest in U.S. history. During that time, the Department of Labor (DOL) website, FLAG, which is used to file Labor Condition Applications for nonimmigrant petitions, as well as Labor Certification Applications for PERM cases, was unavailable. Many employers were unable to comply with DOL filing requirements and thus could not timely file applications with U.S. Citizenship and Immigration Services (USCIS). For example, if an H-1B nonimmigrant was in her grace period and found a new job, the new employer could not timely file an extension of status petition.

To provide some relief, USCIS announced that shutdown-related late filings would generally be considered circumstances beyond the petitioner’s control. USCIS noted that it would consider the government shutdown as an extraordinary circumstance when adjudicating extension of stay and change of status requests. However, the petition must meet all other eligibility requirements and show that the shutdown directly caused the filing delay.

We encourage practitioners to include any evidence available to show that the shutdown caused the delay in filing. This evidence may include communications between the employer and the employee regarding job applications and interviews, and any agreements signed that would show when the employer was in a position to file the petition for the employee. The petition should also be filed as soon as possible now that the shutdown has ended.