During a conference in Washington, DC on April 8, 2011, USCIS indicated that it will be open with business as usual next week even if the U.S. federal government shuts down due to failed budget negotiations between Democrats and Republicans in Congress.  USCIS is a fee-based government agency, and therefore a government shutdown should not affect the agency’s normal operations, according to USCIS.  E-Verify, however, will not be operational during a government shutdown.  Employers will have to plan accordingly for new hires.

U.S. Customs and Border Protection will continue to operate normally at all ports of entry and border posts because these employees are considered essential government personnel, necessary for national security.  However, CBP officials at the conference indicated that CBP headquarters will have very limited operation during the shutdown.

Additionally, officials at the conference indicated that the U.S. Department of Labor could be subject to a potential shutdown, potentially disrupting Labor Condition Application (LCA) filings and Applications for Permanent Employment Certification (PERM).  The officials stated that it is not clear if an LCA or a PERM could even be filed if the DOL is shutdown.   Because the systems require funding to run, employers should assume that they will not be available. USCIS is not yet sure if they will allow H-1B petitions to be filed without LCAs due to the shutdown.

At this time, we are unsure if the Executive Office for Immigration Review (EOIR), which operates the immigration courts throughout the U.S., will close due to the shutdown.  EOIR has been advised to “put its shutdown plans in place.” However, EOIR has indicated that the detained docket would likely be considered an essential function and would therefore be able to continue in operation.

Finally, the State Department also would be subject to a government shutdown.  American citizen services will continue overseas.  However, visa issuances and consular interviews probably will only be given for “life or death” circumstances, as was the case during the last shutdown in 1996.  Aliens travelling overseas should note that their consular interviews could be interrupted and seriously delayed.

If Congress is unable to reach an agreement by tonight, the federal government will close at midnight on Saturday April 9, 2011.

USCIS has published a notice of proposed rulemaking in the Federal Register that would establish an H-1B electronic pre-registration system for cap-subject employers.  The purpose of the pre-registration system is to alleviate USCIS’ administrative burdens and to alleviate employer costs associated with preparing and filing H-1B petitions that are ultimately rejected if the H-1B annual cap is hit.

H-1B visas are subject to an annual numerical limit, or cap, of 65,000 visas each fiscal year. The first 20,000 petitions for these visas filed on behalf of individuals with U.S. master’s degrees or higher are exempt from this cap.  Cap-subject petitions seeking an October 1 start date (the first day of the fiscal year) can be filed up to 180 days in advance of the start date, or on April 1.  In years when the H-1B visa demand is high, USCIS can receive more than 65,000 H-1B petitions on the very first day, April 1.  For example, in FY 2009, USCIS received nearly 163,000 H-1B petitions between April 1 and April 7, 2008.  In this situation, USCIS has administered a random lottery to select H-1B petitions that will be accepted towards the cap. 

The new pre-registration program seeks to alleviate this problem so employers can simply pre-register for an H-1B number instead of incurring the costs of preparing and filing an H-1B petition that may be rejected through the lottery process.  Under the new system, employers who are subject to the annual H-1B cap register electronically with USCIS for an H-1B number for a prospective foreign national employee.  There is no cost for this registration.  USCIS expects that this process would take about 30 minutes to complete. 

The rule proposes that registrations must include basic information regarding the company and beneficiary: (1) the employer’s name, employer identification number (EIN), and employer’s mailing address; (2) the authorized representative’s name, job title, and contact information (telephone number and email address); (3) the beneficiary’s full name, date of birth, country of birth, country of citizenship, gender and passport number; and (4) any additional information requested by the registration or USCIS.  Multiple beneficiaries cannot be listed on a single registration.  At this time, it is unclear if attorneys could pre-register for an H-1B number on behalf of clients. 

USCIS then will select a number of registrations that will exhaust all H-1B numbers for the year and notify the selected employers that an H-1B petition can be filed on behalf of the alien.  USCIS proposes to establish a registration period that would begin no later than in the month of March each year, for a minimum period of two weeks.  If USCIS does not receive close to 65,000 registrations by April 1, USCIS has the discretion to keep the registration period open so it can monitor the cap numbers.  USCIS would notify the public of the respective start and end dates for the registration period via the USCIS Web site. 

Employers would only file an H-1B cap-subject petition if selected by USCIS through the pre-registration process. Upon notification of selection by USCIS, a registrant would proceed to submit the LCA to the Department of Labor for certification and prepare the corresponding H-1B petition on behalf of the desired beneficiary. USCIS proposes that petitioners would have not less than 60 days from the date of notification of selection to properly file a completed H-1B petition for the named beneficiary. USCIS would state the applicable filing deadline in each selection notice.  Under the proposed rule, USCIS may reject the petition if it is filed after the 60-day window.  USCIS also would reject any H-1B petition filing that is not based on a selected registration. 

The pre-registration program will not be available for FY2011.  USCIS has stated that this electronic registration system will not go into effect until a final rule is published and becomes effective. If a final version of the rule is published by January 2012, USCIS could implement the proposed registration system for the fiscal year 2013 H-1B season, which opens in April 2012.

To comment on the proposed rule, members of the public can submit written comments by using any one of the following methods:

• Federal Rulemaking Portal: www.regulations.gov. Follow the instructions for submitting comments.
• E-mail: rfs.regs@dhs.gov. Please include DHS Docket No. USCIS-2008-0014 in the subject line of the message.
• Mail: Chief, Regulatory Products Division, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue, NW, Washington, DC 20529-2020. To ensure proper handling, please reference DHS Docket No. USCIS-2008-0014 on your correspondence. This mailing address may also be used for paper, disk, or CD-ROM submissions.
  • Hand Delivery/Courier: U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue, NW, Washington, DC 20529. Contact telephone number: 1-202-272-8377.

Beginning March 15, 2011 all Change of Address, (Form AR-11) and Alien’s Change of Address, (Form AR-11 SR) will change filing locations.  Now, you must file all change of address forms at the following address:

DHS/USCIS
Harrisonburg File Storage Facility
Attn:  AR-11
1344 Pleasants Drive
Harrisonburg, VA 22801

Change of address forms mailed to the old location will be forwarded to the new filing location for 45 days beginning March 15, 2011 until April 28, 2011.

You also have the option of notifying USCIS of a change of address online. To change your address online visit www.uscis.gov.