Government Shutdown and Its Impact on U.S. Immigration: What Employers and Foreign Nationals Need to Know

1. Agencies Directly Impacted by the Shutdown

Department of Labor (DOL) – Complete Suspension of Services

• The Office of Foreign Labor Certification (OFLC) is closed.
• The Foreign Labor Application Gateway (FLAG) system is inaccessible.
• No processing of the following applications can occur:
  • Labor Condition Applications (LCAs) for H-1B, H-1B1, and E-3 visas.
  • PERM labor certification applications (Form ETA-9089).
  • Prevailing Wage Determinations (PWDs) (Form ETA-9141).
  • Audit responses and appeals before the Board of Alien Labor Certification Appeals (BALCA).

Legal consequence: Employers cannot file new H-1B or E-3 petitions requiring an LCA and cannot move forward with PERM-based green card cases until DOL operations resume. Any filing deadlines falling during the shutdown period are tolled, but employers must document the interruption carefully.

E-Verify – Unavailable

• The E-Verify system is offline. Employers cannot create new cases or resolve existing Tentative Non-Confirmations (TNCs).
• During prior shutdowns, DHS provided flexibility by suspending the three-day rule for E-Verify cases until the system was restored. Similar accommodations are expected.

Executive Office for Immigration Review (EOIR) – Immigration Courts

• Non-detained hearings (for individuals not in custody) are postponed.
• Detained hearings proceed because they are classified as “essential.”
• Filings for non-detained cases may be suspended, creating delays and docket backlogs.

2. Agencies Continuing Operations

U.S. Citizenship and Immigration Services (USCIS)

• USCIS remains largely unaffected because it is funded primarily by filing fees rather than congressional appropriations.
• Adjudications continue for petitions and applications, including:
  • H-1B (if an LCA is already certified)
  • L-1, O-1, P-1, TN
  • Employment-based immigrant petitions (EB-1, EB-2 NIW)
  • Family-based petitions
  • Adjustment of status and naturalization applications
• However, USCIS programs dependent on appropriations—such as E-Verify and certain humanitarian categories—remain suspended.

U.S. Department of State (DOS)

• Visa and passport services generally continue because they are fee-funded.
• U.S. embassies and consulates abroad remain open, subject to staffing and resource constraints.
• If the shutdown persists for an extended period, DOS may reduce non-essential visa services.

U.S. Customs and Border Protection (CBP)

• Ports of entry, inspections, and border enforcement remain fully operational because they are considered essential functions.
• Delays are possible due to reduced support staff, but international travel and admission into the U.S. will continue.

Student and Exchange Visitor Program (SEVP / SEVIS)

• The SEVIS system remains functional, allowing schools and students to maintain status updates, transfers, and extensions.
• F-1, J-1, and M-1 students may continue to file petitions with USCIS as usual.

3. Case-Specific Impacts

H-1B and E-3 Petitions

• New petitions requiring LCAs cannot be filed until DOL reopens.
• Extensions and amendments may proceed if the LCA was already certified.
• Employers must maintain evidence of the shutdown’s impact—screenshots of the FLAG outage, official DOL shutdown notices, and internal correspondence showing attempts to comply.

Practice Note: Historically, USCIS has accepted late H-1B filings if petitioners can show the inability to obtain a timely LCA was due to a government shutdown.

PERM Labor Certification (EB-2 and EB-3 Cases)

• No PERM applications or prevailing wage requests can be filed or processed.
• Cases with expiring recruitment periods or deadlines must be carefully documented.
• Employers should preserve evidence that the shutdown prevented filing; once operations resume, filings should be submitted immediately.

Cases Not Dependent on DOL

• L-1, O-1, P-1, TN, EB-1, National Interest Waiver (NIW), family-based petitions, asylum, TPS, and adjustment of status remain unaffected by the shutdown.
• Employers and applicants should continue filing these petitions to avoid unnecessary delays.

4. Recommended Employer and Applicant Actions

1. File Immediately if Possible
   • If you already have a certified LCA, do not delay in filing the petition with USCIS.
   • Submit any filings not dependent on DOL to avoid a future backlog.
2. Document the Shutdown Impact
   • Retain evidence of system unavailability (screenshots, official notices).
   • Keep records of deadlines that fell during the shutdown.
   • Prepare cover letters explaining that late filings were due to extraordinary circumstances beyond your control.
3. Communicate with Employees
   • Notify affected foreign nationals of potential delays.
   • Reassure employees in categories unaffected by DOL that their cases remain on track.
4. Prepare for Post-Shutdown Backlogs
   • Historically, once DOL reopens, a surge of filings creates processing delays.
   • Employers should be prepared for slower adjudication of LCAs, prevailing wage determinations, and PERM applications.
5. Monitor Congressional Developments
   • Past shutdowns have lasted anywhere from a single day to 35 days (2018–2019).
   • The duration of this shutdown remains uncertain; employers must remain flexible and alert.

5. Conclusion

The 2025 government shutdown has created immediate disruption for DOL-dependent immigration processes—most notably H-1B, E-3, and PERM filings. Employers and employees must act strategically: file where possible, document delays, and prepare for backlogs once operations resume.

While USCIS, DOS, CBP, and SEVIS continue to operate, the inability to file LCAs and PERMs creates a critical bottleneck in employment-based immigration. The ultimate impact will depend on the length of the shutdown and whether Congress reaches a resolution promptly.

In the meantime, employers are advised to maintain full compliance, prepare documentation of shutdown-related barriers, and consult immigration counsel for case-specific guidance.