The 2024-2025 government fiscal year was marked by multiple threats of government shutdowns, each one narrowly avoided with continuing resolutions to keep the government funded. As the current fiscal year draws to a close, there is speculation that Republicans and Democrats may not reach an agreement on annual spending bills by midnight on September 30, 2025. If a budget or continuing resolution is not passed by this deadline, there is a shutdown and all but “essential” personnel are furloughed. For employers with foreign national workers, it is important to understand which immigration related functions may be impacted in order to navigate an impeding shutdown.
Each time the federal government has experienced a shutdown, the exact plan for which agencies continue to provide services has varied. Based on prior shutdowns, however, the following is an overview of how the shutdown will likely impact various immigration processes. Based on the likely impacts, we also outline actions that employers should take now, prior to a possible shutdown.
U.S. Citizenship & Immigration Services
As a fee-based agency that is not dependent on federal appropriations, U.S. Citizenship & Immigration Services (“USCIS”) is expected to continue processing petitions and applications. New filings, extensions, and USCIS mandated steps in the green card process can continue be filed and processed, with some possible processing delays.
However, filings that require a certified Labor Condition Application (“LCA”) from the Department of Labor, such as requests for H-1B, H-1B1 and E-3 classification, may be delayed if the certification has not been completed before shutdown. Filings without certified LCAs cannot be filed during the shutdown. USCIS has historically accepted late I-129 filings upon reopening with evidence that the primary reason for the delay was the government shutdown. USCIS has not confirmed, however, whether they will adopt a similar approach this time.
E-Verify, USCIS’s system that allows employers to verify employment eligibility, will be inaccessible during a shutdown as that program requires appropriated funds. Although E-Verify is suspended during a government shutdown, employers will need to continue to complete Form I-9s for any new hires in a timely fashion. The information may be input into E-Verify once the government reopens.
Department of Labor
The Office of Foreign Labor Certifications (“OFLC”), which oversees filings with the Department of Labor (“DOL”), is normally closed during government shutdowns. OFLC normally does not accept or process any applications or related materials during a shutdown including LCAs, applications for a prevailing wage determination, applications for permanent employment certification (PERM), or PERM audit responses. OFLC has stated that the FLAG system will be disabled and inaccessible in the event of a shut down. As a result, users will not be able to access the FLAG system to print approved applications or take any other actions within the system. Employers should take steps to ensure that filings, such as LCAs, Applications for Permanent Employment Certification (i.e. the PERM system), or PERM audit responses are completed prior to the shutdown to avoid missed deadlines. Employers should also access the system prior to the shutdown to take any steps needed, including for example, accessing and printing/saving certifications. Employers should expect delays once the government reopens. Additionally, appeals pending with the Board of Alien Certification Appeals (“BALCA”) are placed on hold during the government shutdown.
Department of State
Generally, the Department of State (“DOS”) is not impacted by government shutdowns as visa and passport operations are fee-funded. However, during prior shutdowns, DOS has reduced or halted visa issuance. Individuals with or planning visa stamp appointments should be prepared for delays or disruption to consular services and monitor the situation closely. If international travel cannot be avoided, individuals should understand that interruptions to consular services can result in prolonged delays and the possibility of being unable to return to the United States for several months.
Immigration and Customs Enforcement Customs and Border Protection
Immigration and Customs Enforcement (“ICE”) Customs and Border Protection (“CBP”) personnel are considered essential workers, and these agencies should remain fully operational. Ports of entry at airports or land border crossings will remain open. However, individuals who seek to apply for an immigration benefit at a port-of-entry or a pre-clearance facility (such as TN and L-1 applications for Canadian nationals) will need to confirm the operational status of the location at which they intend to apply for the latest information.
Employer Actions Items to Prepare for a Government Shutdown
Employers should act now to safeguard immigration processes, avoid costly delays, and ensure compliance and consider this list of action items.
1. U.S. Citizenship & Immigration Services (USCIS)
- File petitions requiring certified LCAs (H-1B, H-1B1, E-3) before the shutdown.
- Keep evidence of filing delays caused by a shutdown for possible late acceptance.
2. E-Verify
- Continue timely completion of Form I-9s for all new hires.
- Plan to update E-Verify once the system reopens.
3. Department of Labor (DOL / OFLC)
- Submit LCAs, prevailing wage requests, and PERM applications before shutdown.
- Access FLAG system early to download/print approved applications and certifications.
- Prepare for delays upon reopening.
4. Department of State (DOS)
- Advise employees to expect delays in visa issuance or stamping.
- Review travel plans – avoid non-essential international travel around shutdown dates.
5. ICE & CBP
- Confirm operations at ports of entry or pre-clearance locations for TN/L-1 applications.
- Advise employees on possible variations in processing at different locations.
As the September 30th deadline approaches, preparation is key. By reviewing case strategy and completing filings before September 30, employers can minimize disruption to business operations and foreign national employees. Employers and sponsored employees are encouraged to monitor the situation for updates and reach out to immigration counsel with questions or concerns.
The material contained in this alert does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
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