As the possibility of a U.S. government shutdown looms or occurs due to a lapse in appropriations, it is critical to understand the implications such an event has on the operations of the U.S. Department of Labor (DOL), particularly as it relates to employment-based immigration matters. A “shutdown” in this context refers to the cessation of non-essential government functions due to a lack of authorized federal funding, as governed by the Antideficiency Act (31 U.S.C. § 1341).
This article provides a detailed legal analysis of the operational consequences of a DOL shutdown, particularly for employers and non-immigrant workers in visa categories such as H-1B, H-1B1, E-3, and those pursuing PERM-based green card sponsorship. We will also address potential legal remedies and best practices during and following a DOL shutdown.
Legal Basis for a Government Shutdown
Under the Antideficiency Act, federal agencies may not incur obligations or expend federal funds in the absence of appropriations unless the function is:
- Expressly authorized by law, or
- Necessary to protect human life or property.
Each federal agency, including the Department of Labor, is required to publish a Contingency Plan identifying which operations will continue (classified as “excepted”) and which will be suspended (non-excepted).
DOL Operations Suspended During a Shutdown
When appropriations lapse, the following DOL functions relevant to immigration processing are typically suspended:
a. Office of Foreign Labor Certification (OFLC)
- Labor Condition Applications (LCAs): Employers are unable to file or receive certification of LCAs for H-1B, H-1B1, or E-3 petitions.
- PERM Applications: Processing of PERM labor certification applications and Prevailing Wage Determinations (PWDs) halts entirely.
- iCERT and FLAG Systems: Access to these systems may be unavailable or frozen.
As a result, employers cannot initiate or continue cases requiring active DOL certification, thereby disrupting filing timelines for new employment or visa extensions dependent on such certifications.
b. Wage and Hour Division (WHD)
Routine audits, investigations, and compliance actions under the Fair Labor Standards Act (FLSA) and LCA enforcement provisions (8 U.S.C. § 1182(n)) are paused unless they involve:
- Child labor violations,
- Cases of imminent danger or harm,
- Statutorily mandated deadlines.
c. Office of Federal Contract Compliance Programs (OFCCP)
All compliance evaluations and enforcement actions regarding federal contractors’ affirmative action obligations are suspended.
Functions That Continue (Excepted Services)
Despite a funding lapse, certain DOL functions deemed “excepted” may continue under limited circumstances:
- Investigations involving immediate threats to life or property
- Certain legal or court-mandated proceedings
- Minimal staff required to protect DOL’s assets or maintain IT infrastructure
However, these exceptions do not apply to routine immigration-related filings, including LCAs and PERM applications.
Impact on Immigration Processing
a. H-1B, H-1B1, and E-3 Petitions
U.S. Citizenship and Immigration Services (USCIS) continues to operate during a government shutdown because it is fee-funded. However, H-1B petitions cannot be accepted by USCIS without a valid certified LCA from DOL.
Result: If an employer is unable to obtain a certified LCA due to a shutdown, they may be unable to file new H-1B petitions, change of employer requests, or timely extensions, causing disruptions in employment authorization.
b. PERM-Based Green Card Sponsorship
Employers cannot initiate new PERM applications or file prevailing wage requests while the DOL’s OFLC is non-operational.
Result: PERM priority dates may be delayed, and time-sensitive filings—especially those close to H-1B max-out—may be adversely impacted.
Legal Remedies and Strategic Considerations
a. Extraordinary Circumstances – USCIS Discretion
If a petition cannot be filed in time due to a DOL shutdown, employers may assert “extraordinary circumstances” when responding to RFEs or Notices of Intent to Deny (NOIDs) under 8 C.F.R. § 103.5(b).
Documentation Should Include:
- Screenshots or official statements showing OFLC system inaccessibility
- Proof of attempted compliance (e.g., pre-filled LCAs)
- Timeline and legal memos explaining the direct impact of the shutdown
b. Good Faith Filing Strategy
If the LCA was filed before the shutdown and is pending, employers may consider preparing the H-1B petition for filing immediately after the LCA is certified, once operations resume. Employers should maintain thorough documentation of the shutdown’s impact to protect their good-faith filing position.
c. Planning Ahead
Employers should consider the following best practices:
- Pre-emptively file LCAs and PWDs where appropriate
- Identify upcoming expirations and prepare filings in advance
- Maintain internal communication with HR, legal counsel, and employees about possible delays
Frequently Asked Legal Questions (Advanced)
Q1: Can a certified LCA obtained before the shutdown still be used to file an H-1B petition?
A: Yes. If the LCA is already certified and falls within its validity period, the petition may be filed with USCIS as long as all other requirements are met. However, no amendments can be made during the shutdown.
Q2: Is there a legal basis for USCIS to accept a late petition due to a DOL shutdown?
A: Yes. Under certain circumstances, USCIS may exercise discretion to excuse late filings caused by extraordinary circumstances beyond the petitioner’s control. The burden of proof lies with the petitioner to demonstrate causation and diligence.
Q3: What happens to PERM deadlines during a shutdown?
A: If a shutdown delays submission of a recruitment summary or PERM application, the employer may risk missing regulatory deadlines. DOL has not historically extended PERM recruitment timelines due to shutdowns. Therefore, it is advisable to delay recruitment during a shutdown unless absolutely necessary.
Q4: Can employers face penalties for I-9 violations or LCA noncompliance during a shutdown?
A: In most cases, audits and investigations are paused. However, employers are still legally required to remain in compliance with LCA and I-9 obligations. Penalties may apply once DOL resumes operations if violations occurred during the shutdown period.
Conclusion
A DOL shutdown, though temporary, can have significant and immediate consequences for employment-based immigration processes. It is critical for employers and immigration practitioners to act proactively, maintain thorough documentation, and anticipate both legal and operational hurdles.
By understanding the scope of affected services, preparing contingency plans, and seeking legal relief where available, stakeholders can navigate the complexities of a shutdown with minimal disruption.
