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What will the Department of Labor do about the H-2B visa lottery if the government shuts down?
A government shutdown would put the Department of Labor’s Office of Foreign Labor Certification in a completely uncharted position: what on earth do they do about the H-2B visa lottery? For the first time in at least 25 years, the DOL must figure out a game plan for the January 1–3, 2025 lottery. The FLAG system is set to go offline at midnight tonight, December 20, 2024. If FLAG remains down, the electronic filing of H-2B visas simply cannot reopen. But will the lottery proceed as usual? You’d think the answer would be straightforward, but the catch here is that the OFLC might not have time to issue any guidance at all.
Back during the last major winter holiday government shutdown—from December 2018 to January 2019, a 34-day marathon—the Department of Labor wasn’t affected. At the time, its funding was secured through September 2019, and as a result, the H-2B lottery took place without a hitch. In other words, there’s no neat, recent historical precedent for the OFLC to reference now. (And let’s not forget: the DOL is NOT funded through 2025 this time, so it’s headed for a shutdown at midnight, unlike in 2018.)
The closest comparable scenario was in 2014, when the DOL’s OFLC was closed from October 1 to October 18. Back then, the OFLC couldn’t warn employers in advance about how the shutdown would affect their filings. Instead, it only managed to issue a public message 31 days later—on October 31, 2014—explaining that deadlines would be extended for various OFLC filings. In the interim, from October 1 to October 31, 2014, employers and their representatives were left scrambling, mailing in H-2 TLCs, PERMs, and PWDs via snail mail, courier, and email, with no guarantee that missed deadlines would be forgiven or that late filings would be honored.
And so we come to today. Every report from Washington suggests that the federal government is rushing around, blindsided by this sudden shutdown. The agencies’ top priority will be handling worker furloughs, and that alone will likely consume whatever limited time they have for crisis planning. It’s highly improbable that the OFLC will have the bandwidth to release any detailed guidance on what’s going to happen with the H-2B lottery. We may be heading for a 2014-style replay, where the OFLC issues no instructions until after the shutdown is over.
This leaves employers and their representatives stuck wondering what to do. Should you still attempt to file ETA 9142 forms on January 1–3? And if so, how? Should you mail them in (ugh)? Try email (assuming it even works or is accepted)? Or should you just wait until FLAG is back online and file electronically then? These are pressing questions, and right now, the answers are maddeningly unclear.
If the OFLC does issue any announcements, they’ll be posted here: https://www.dol.gov/agencies/eta/foreign-labor/news
