H-1B Visa Holders Urged to Act Swiftly Amidst Shutdown

H-1B Visa: In a recent turn of events, the U.S. federal government managed to dodge a shutdown crisis, at least temporarily. President Biden’s signature on a short-term spending bill secured funding until November 17, 2023. However, as the nation breathes a sigh of relief, uncertainty still looms over what the future holds.

Amidst this uncertainty, individuals impacted by immigration policies are advised to take proactive steps, with H-1B visa holders standing at the forefront. Immigration attorney Robert Webber has shared crucial advice for those navigating the complex world of H-1B visas in these uncertain times.

“If they intend to switch jobs,” Webber advises, “they should accept the new job offer at the earliest opportunity. This allows the new employer to file and secure approval for the Labor Condition Application (LCA) before November 17.”

H-1B Visa in U.S. Updates

The potential shutdown poses a significant challenge to immigration-related functions conducted by the Department of Labor (DOL). These functions include processing LCAs (Labor Condition Applications), permanent labor certification, and determining prevailing wages. For employers in the United States sponsoring H-1B employees, obtaining a prevailing wage rate is a critical step in the process.

H-1B visa holders are required to be paid a wage higher than either the actual wage rate for similar roles or the prevailing wage in their intended employment area when they file their H-1B applications. To proceed with the H-1B visa process, employers must have certified LCAs from the DOL.

Fortunately, the U.S. Citizenship and Immigration Services (USCIS), responsible for visa application processing, is primarily fee-funded and is less affected by government shutdowns. However, a sponsoring employer cannot approach the USCIS until the first two formalities with the DOL are completed.

Cyrus D. Mehta, a prominent immigration attorney based in New York, emphasizes, “If there is a shutdown, USCIS will operate as usual due to its fee-funded structure. The most significant impact will be felt by the DOL, which will cease processing all applications, indirectly affecting the ability of foreign workers to maintain their nonimmigrant status.”

Mehta adds, “Since obtaining an LCA from the DOL is a prerequisite for filing an H-1B extension, a DOL shutdown will also hinder employers from filing timely H-1B status extensions with USCIS before their foreign workers’ status expires.”

The regulations stipulate that an application for an H-1B visa extension cannot be submitted earlier than six months before the current H-1B expiration date. In this context, Webber elaborates, “Sponsoring companies can file LCAs for expirations through mid-May. For H-1Bs expiring after mid-May 2024, the LCA process can be initiated earlier.”

He illustrates this point further: if an employee’s H-1B expires on June 1, 2024, the LCA can be filed as early as October 2, 2023, allowing for a validity period spanning from April 1, 2024, to March 31, 2027.

Webber emphasizes that not all employers may opt for this strategy, but it’s a prudent approach in certain situations, particularly when H-1B workers have spouses on dependent visas with work authorization. This strategy helps mitigate concerns about potential employment gaps for spouses.

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