In most years we wait until January or February to begin the actual processing of H-1 petitions to be filed on April 1. However, there is an additional issue this year which we may need to plan for: believe it or not another debt limit showdown may be looming in Congress with a deadline in the middle of January 2014. If another government shutdown is the result, we may see serious delays in labor condition applications/prevailing wage determinations from the Department of Labor which in turn would delay the filing of H-1 petitions with the Immigration Service.
Currently, labor condition application (LCA) approvals take approximately one to two weeks. For this reason we typically file the LCA applications in February of each year or early March at the latest. The LCA must obviously be approved before the H-1 petition can be filed with the Immigration Service on April 1.
As we have seen in the past, if Congress cannot resolve the debt limit, which again becomes an issue in the middle of next January, the government may shut down which eliminates the ability to get LCAs approved by DOL. Even if the government is only shut down for a week or two this will cause a backlog which means it may take three to four weeks or more to get an LCA approved.
Due to this uncertainty, we have recommended to those clients who have already decided to file the H-1 petition on April 1 to consider filing the LCA now or within the next two weeks in order to ensure that we will have an approved LCA regardless of whether the government shuts down over the debt limit issue. The only drawback to this strategy is the LCA will begin to run well before October 1, 2014 which means the petition will not be approved for a full three years beginning on October 1. However, this is a very small negative when compared to the inability to get an approved LCA before April 1 and therefore missing the deadline for filing the H-1 petition entirely.
We encourage employers and H-1 beneficiaries to consider these timing issues very carefully and perhaps take the very conservative approach by obtaining the approved LCA now rather than being at the mercy of the political situation in Washington.