The ongoing government shutdown, triggered by a lapse in congressional appropriations, has created immediate and critical challenges for U.S. businesses that rely on the immigration system. While agencies like USCIS (U.S. Citizenship and Immigration Services) remain largely operational because they are fee-funded, the closure of the Department of Labor (DOL) has effectively frozen key processes necessary for hiring and retaining skilled foreign workers.
The Critical Impact: DOL Services Halted
The Office of Foreign Labor Certification (OFLC) within the DOL is currently suspended, causing immediate disruptions to the two most common employment immigration paths:
- H-1B and Temporary Visas: The DOL is not accepting or processing Labor Condition Applications (LCAs) or Prevailing Wage Determinations (PWDs). An LCA is a mandatory prerequisite for filing H-1B, H-1B1, and E-3 petitions with USCIS. This immediately halts the filing of new cases and prevents the extension or transfer of status for employees whose visas are expiring if the LCA was not secured beforehand.
- PERM Labor Certification: The entire Green Card pipeline is frozen. The DOL is not accepting new PERM applications or adjudicating pending ones. Furthermore, processing for PWDs (the essential first step of PERM) is also suspended. This compounds the existing backlog, adding months of delay to a process that already takes well over a year. Audits and appeals for PERM cases are also paused.
The Immediate Compliance Issues
Beyond major filings, the shutdown creates compliance risks for everyday HR functions:
- E-Verify Unavailable: The E-Verify system, used to confirm employment eligibility, was suspended at the start of the shutdown. While the three-day rule for E-Verify case creation has been temporarily suspended, employers must still comply with Form I-9 requirements and document their good-faith efforts.
- Max-Out Risk: Employees on temporary visas (like the H-1B) whose status is approaching its maximum limit face heightened risk. While USCIS may grant discretion to accept late filings due to the shutdown (citing “extraordinary circumstances”), this is determined case-by-case and is not a guaranteed waiver of the deadline.
- Travel Advisory: Non-essential international travel is discouraged. While CBP and DOS generally remain open for core functions, any employee seeking a new visa stamp or re-entry could face delays or heightened scrutiny due to limited staffing.
Why a Business Immigration Attorney is Essential
In this volatile environment, the value of a specialized business immigration attorney shifts from processing to risk mitigation and strategic contingency planning:
- Contingency Planning. Counsel can advise employers on alternative strategies, such as filing PERM paperwork via mail if the online FLAG system remains offline (a known tactic from past shutdowns), and help prepare all necessary LCA postings in advance for immediate submission upon government reopening.
- Status Protection. Attorneys review an employee’s timeline and proactively identify which employees are at risk of maxing out, securing documentation needed for potential USCIS requests for discretion to protect the employee’s status.
- Post-Shutdown Recovery. When the government reopens, a massive backlog will ensue. Attorneys help prioritize and expedite cases by maintaining a clear, audit-ready status of all applications, ensuring the business is first in line when agency doors reopen.
This period demands vigilance and immediate, strategic advice to protect your talent pipeline and safeguard your company’s immigration compliance posture. Contact Klug, your expert in business immigration law: https://form.fillout.com/t/f2y6C8ebHNus.