H-2B Notice: Potential Government Shutdown
The potential implications of a shutdown on H-2B applications
As you’ve undoubtedly heard through various media reports, the U.S. is facing a potential government shutdown if Congress fails to reach an agreement before funding runs out on September 30. We wish to update you on the potential implications of such a shutdown on your H-2B applications.
The bottom line
A government shutdown will only directly impact the U.S. Department of Labor (DOL).
Because of the timing of the H-2B filing process, we do not anticipate any impact on Spring 2024 labor certifications, visa petitions, or consular availability.
One primary impact on the H-2B program would be the Prevailing Wage Determination (PWD) process, which must occur prior to the January 1 filing window.
There could also be a potential impact on employers seeking to take advantage of 1st half “cap relief” visas.
Agency-specific details
Department of Labor (DOL)
With respect to DOL, which adjudicates H-2B labor certification applications, the agency relies on congressional appropriations to remain operational (although it charges a certification fee, the collected funds go back to the general Treasury and are not used to support the agency’s functions).
Because the shutdown will occur in early Q4 of 2023, we do not anticipate any disruption to the January 1 H-2B filing window/lottery for employers with Spring 2024 start dates. We anticipate that the government will be funded and operational by that time.
Please note that the Prevailing Wage Determination (PWD) must be issued prior to January 1 to participate in the lottery. Most of our H-2B clients have already filed their PWD requests, and we do not anticipate any issues on such cases, even if there is a prolonged shutdown.
Employers who have not yet renewed for Spring 2024, however, are urged to do so as soon as possible. Currently, DOL is taking 40-60 days to process a PWD request. Should there be a prolonged government shutdown, it is likely that there would be insufficient time to obtain a PWD before the January 1 filing window. This would preclude your ability to get workers in Spring 2024.
The other potential DOL impact concerns employers seeking to take advantage of first-half “cap relief” visas (i.e., requesting a pre-April 1 start date). Depending on the requested start date, the filing timeline for such applications would occur in October or November. A prolonged shutdown may preclude our ability to timely file any such application.
U.S. Citizenship and Immigration Services (USCIS)
At this time, we do not anticipate any issues with USCIS processing as a result of the shutdown, given the timing of the H-2B petition process.
Furthermore, USCIS is fee-funded and does not rely on congressional appropriations for continued operation. Therefore, all service centers (including the Vermont and California Service Centers, which adjudicates H-2B petitions) will remain operational during a shutdown.
One potential impact, however, is the agency’s ability to announce or issue supplemental “cap relief” visas. The issuance of cap relief requires formal action by the agency published in the Federal Register. A shutdown may impede or preclude the agency’s ability to do so, thereby delaying any cap relief announcement.
Department of State (DOS)
Given the timing of H-2B worker crossings, we do not anticipate any issues on the consular front. Further, the State Department’s Bureau of Consular Affairs, which oversees U.S. diplomatic posts worldwide, is fee-funded and considered to be an “essential” government function.
What’s next?
At this time, we can only speculate about the likelihood and length of a potential shutdown. As always, however, we will keep you apprised of any developments as they pertain to the H-2B program.