As the federal government shutdown continues, Fredrikson is providing the following guidance regarding its impact on certain immigration petitions and processing issues.
United States Citizenship and Immigration Services (USCIS)
USCIS remains operational during the shutdown, as it is primarily funded by filing fees paid for immigration matters. However, the agency has reported that certain operations — such as interviews and naturalization ceremonies — may experience delays. Overall, most petitions filed with USCIS will continue to be processed.
Department of Labor (DOL)
The DOL is currently closed due to the government shutdown. Its Foreign Labor Application Gateway (FLAG) system, which is used for multiple immigration applications including H-1B, H-2B, H-2A and PERM, is not operational while the Federal Government is shutdown. As a result:
- Certified Labor Condition Applications (LCAs), required for H-1B filings, cannot be filed or accessed.
- Prevailing wage requests for PERM and H-2B applications cannot be submitted.
Impact on Specific Immigration Filings
H-1B Petitions
H-1B petitions — including extensions, portability cases and amendments — require a certified LCA. USCIS has announced that it will continue to process H-1B, H-2A, H-2B-related Form I-129 petitions and CW-1-related Form I-129CW petitions during the shutdown. However, USCIS noted:
“We recognize that the shutdown may affect a petitioner’s ability to obtain required documentation (such as a labor condition application or a temporary labor certification from the U.S. Department of Labor), which may delay their ability to file Form I-129 or Form I-129CW.”
If a petitioner meets all other applicable requirements and submits evidence showing that the government shutdown was the primary reason for a late filing of an extension of stay or change of status request, USCIS will consider the shutdown an “extraordinary circumstance beyond the petitioner’s control” and may excuse the late filing.
Important Considerations for H-1B Workers
- Individuals in H-1B status should avoid making material changes to their employment or immigration status, including changing employers, while the FLAG system is down.
- Those nearing the end of their current H-1B status may risk falling out of status due to the inability to file for an extension.
- While USCIS may excuse late filings, the interim period presents risks to lawful status.
- H-1B workers who have ended employment and cannot have a new employer file an extension may need to consider filing a B-1/B-2 petition to maintain lawful status during the shutdown. Legal counsel should be consulted before taking this step.
PERM Labor Certification Applications
The DOL has not issued guidance on how it will treat PERM filings. In urgent situations where a PERM application must be filed, employers may consider submitting a hard copy of the ETA 9089 PERM labor application by mail. However, processing timelines remain uncertain for applications filed using mail during the government shutdown.
H-2A and H-2B Petitions
Due to the FLAG system outage, employers cannot electronically file H-2A or H-2B petitions. Although DOL regulations allow for mail-in submissions, no official guidance has been issued regarding whether or when these petitions will be processed.
Disclaimer
This guidance is subject to change based on updates from USCIS and DOL. Employers and individuals are encouraged to consult with the Fredrikson Immigration Team for case-specific advice.
