Pabian Law Clients,
I hope all is well. As we start Week 5 of the government shutdown, we want to share updates surrounding our plan of action on your H-2B visa petitions.
As you will read below, thanks to all of your hard work, combined with my incredibly dedicated team, none of you are in immediate danger of having the shutdown affect your filing, hiring, or staffing plans. The next two weeks, though, will be critical for summer-season organizations. Hopefully, our elected officials will reopen the country before mid-November.
Why does a government shutdown affect H-2B visa petitions?
As a reminder, during a government shutdown, the U.S. Department of Labor (DOL) ceases work on all H-2B visa-related work, including reviewing Prevailing Wage Determination (PWD) Applications and Applications for Temporary Employment Certification (ETA application) (the application that we work to file 90 days before your start date). These are the first 2 application steps in the H-2B visa petition process. Additionally, during a shutdown, we cannot access and/or draft and applications on the DOL websites. Therefore, government shutdowns have a large impact on H-2B visa petitions – especially those early in the petition process such as summer 2026 petitions as well as those with late winter-season start dates.
When will the shutdown end?
We wish we knew this answer! We are hopeful that the shutdown will end soon, but there is no way to know. The record for the longest shutdown ever is 35 days in 2018. I very much hope that record stands after this shutdown ends!
Numerous advocacy and lobbying groups are pushing our elected officials to reopen the government. So far, though, there has been little public news about reconciliatory talks or when the shutdown could end.
What is Pabian Law doing to move your H-2B visa petitions forward?
As you will read below, our strategy during the shutdown is to move all of your petitions forward as much as we can so that we are ready to quickly proceed when the shutdown ends. In fact, we are ahead of schedule on many petitions because our team is tirelessly moving your petitions forward.
Additionally, we are committed to providing ongoing education and updates. Unfortunately, there have not been many updates to provide thus far, but we will continue to update you when there is news to share.
How does the shutdown impact winter-season clients and what is Pabian Law doing to push petitions forward?
Thankfully, the vast majority of our winter-season clients’ petitions were approved by the U.S. Department of Labor before the shutdown commenced. The shutdown largely affected our clients with later start dates (ex. December, January, and February start dates).
For those winter-season clients still in the U.S. Department of Labor stage, we are proceeding as follows:
- Filing Recruitment Reports, when applicable, by the government deadlines;
- Continuing to review in-country worker documents;
- Preparing U.S. Citizenship & Immigration Services petitions;
- Reviewing seasonality documents for late winter-season filers; and/or
- Communicating with clients if we need revisions and/or additional documents for their petitions.
For the majority of our winter-season clients still in the U.S. Department of Labor stage, we will be able to finalize petitions and file with U.S. Citizenship & Immigration Services very soon after the government reopens. Thankfully, winter-season petitions have gone incredibly smoothly this year and there is still a strong chance that you will have your H-2B visa holders working in time for your petition start date. For the very few where we have concerns, we will email you separately. We are so close to being done with the H-2B visa petition process for so many of you!
How does the shutdown impact summer-season clients and what is Pabian Law doing to push petitions forward?
Unlike with the winter-season where so many of our clients are unaffected by the shutdown, all of our summer-season clients are, or are starting to be, affected by the government shutdown.
First, the not-so-good news. For clients with H-2B visa petitions with April 1st start dates, we are officially past our target date to file your Prevailing Wage Determination (PWD) Applications. This is important because we need the U.S. Department of Labor to issue Prevailing Wages based on the filed PWDs before we can file your Applications for Temporary Employment Certification (ETA applications) on the 90 day mark. For you April 1st clients, filing the ETA application on the 90th day is what enters you into the random lottery that impacts your ability to recruit out-of-country workers and how much your petition will be subjected to government delays.
Now, the hopeful news. As so many of you know all so well, we are very careful here at Pabian Law to set deadlines that provide a bit of a buffer. Therefore, even though our PWD application filing deadline has passed, we still have a little more time for the government to reopen before we become extremely concerned about being able to file your ETA applications on January 1st. The next couple of weeks, combined with how fast the U.S. Department of Labor processes applications once the government reopens, will dictate our ability to file on the 90 day mark. If the government shutdown lasts past mid-November, some decisions and considerations may need to be made.
For those with post-April 1st start dates, you are not yet behind. If the government shutdown persists, though, you will fall into a similar situation as the one described above for those with April 1st start dates.
One potential solution that could arise is for the government to make a special filing allowance this year due to the government shutdown. Where this affects every summer-season employer that files for H-2B visas in the United States, there is going to be immense pressure on the federal government to provide filing relief if the shutdown continues on for much longer. In that scenario, we can envision solutions such as the U.S. Department of Labor allowing employers to file with pending PWD applications rather than issued PWDs. That would single-handedly solve the delay due to the shutdown. To be clear, though, this solution is us speculating rather than hearing anything whatsoever from the government.
In the meantime, we are doing everything possible to move your petitions forward as much as we can despite the shutdown. Specifically, we are continuing to:
- Draft and review your H-2B visa Job Descriptions;
- Request and review your seasonality evidence;
- Confirm the intended number of H-2B visa workers that you intend to file for in each of your petitions;
- Request or create your log-in information to access your organization’s State Workforce Agency (SWA) website, allowing us to draft your H-2B visa Job Order; and
- Confirm whether you are using a recruiter and provide you with reference documents for you and/or your recruiter to use during recruitment; and
- Continue to provide education and updates.
As soon as the government reopens, we will:
- Draft and file your PWD applications, if they were not drafted and/or filed prior to the shutdown; and
- Draft your ETA applications upon receipt of Prevailing Wage Determination.
I am really proud of all of you, as well as my incredible team, for how far we have moved summer-season H-2B visa petitions along despite the shutdown. To say that we are in the best possible position under the circumstances is an understatement.
What we need from you, our clients
First and foremost, don’t panic! As you can see from the above, we have gotten your petitions to the best possible place. Also, there are solutions for everything, including considering in-country H-2B visa petitions that are cap-exempt in the worst case scenario of the government shutdown lasting indefinitely. But, for the time being, there is no need to change any of your filing or recruiting plans. We will alert you if we get to that point (which we hopefully will not)!
Second, as a reminder, due to the shutdown, the timelines are going to shrink and we are going to need to move quickly on your applications as soon as the government reopens. Therefore, here is where we need your help in the weeks ahead:
- Provide quick responses, when asked
- Review documents thoroughly, but quickly, when we send them to you
Finally, keep asking us questions and attend our education. You very much need to know what is happening in the weeks and months ahead.
Takeaways
Thanks to all of your hard work, combined with my incredibly dedicated team, none of you are in immediate danger of having the shutdown impact your filing, hiring, or staffing plans. The next two weeks, though, will be critical for summer-season organizations. Hopefully, our elected officials will reopen the country before mid-November.
We will keep you updated as we have news to share and will continue to move all of your petitions forward as much as possible in the meantime.
Please let us know if you have any questions. Rest assured that we are doing everything possible to move your H-2B visa petitions as far along as possible during the shutdown to allow us to be nimble and quick once the government reopens. Thank you all for your understanding, hard work, and partnership. I truly appreciate each and every one of you!
Thank you,
Keith and the Pabian Law Team