If the government shuts down on Tuesday night, the processing of new H-1B visas may come to a standstill.
A prolonged federal government shutdown could disrupt the flow of certain foreign workers into the country, preventing employers from submitting necessary paperwork and putting the future of H-1B visas on hold.
The Department of Labor’s Office of Foreign Labor Certification would stop processing all applications, according to a fact sheet distributed to immigration lawyers. No Labor Condition Applications, prevailing wage determinations, or PERM filings would move forward. The agency’s online FLAG portal would reportedly also go offline, leaving employers unable to submit or track filings.
“The OFLC will cease processing all applications in the event of a government shutdown, and personnel would not be available to respond to e-mail or other inquiries,” the American Immigration Lawyers Association (AILA) warned in a practice alert. “DOL’s websites (including the FLAG system) would be deactivated. BALCA and DOL ALJ dockets would be placed on hold.”
The Breakdown
- The Department of Labor will suspend all visa-related certifications, halting LCAs, PERM, and wage determinations.
- The FLAG filing system will be shut down, preventing new or pending submissions.
- USCIS will continue processing petitions, but cannot move forward without certified paperwork from the Department of Labor.
- Employers could miss statutory deadlines, jeopardizing H-1B filings and green card sponsorships.
- E-Verify will be suspended, adding complications for hiring and compliance.
Because certified Labor Condition Applications are required for H-1B, H-1B1, and E-3 petitions, employers could be left unable to sponsor or extend workers in specialty occupations. The Department of Labor currently has a seven-day turnaround time for certifications, according to AILA. A prolonged shutdown would add to the existing backlog.
The AILA fact sheet urged employers with deadlines to file before 11:59 p.m. Eastern on September 30. It also cautioned PERM filers with approaching deadlines to act immediately, since delays could disrupt green card sponsorship.
U.S. Citizenship and Immigration Services (USCIS), which operates on user fees, will continue to process most petitions, according to a news alert from Go Elite, an education organization for international students seeking education in the United States. Go Elite’s post indicated that USCIS relies on certified paperwork from the Department of Labor, creating a bottleneck that could effectively halt new H-1B filings.
USCIS should still be able to access some data uploaded from the FLAG system prior to the shutdown to adjudicate certain I-129 and I-140 petitions, according to Clark Hill’s legal blog.
“If there is a shutdown, OFLC may issue guidance about flexibility for employers with filing deadlines,” AILA’s fact sheet indicated, without giving specifics on what that flexibility might look like.
Other agencies will face mixed impacts. Customs and Border Protection officers will continue to work at ports of entry, although travelers may experience delays. U.S. embassies abroad will continue to process visa applications as long as fee revenue is maintained. The E-Verify system, which depends on appropriated funds, will be suspended, according to Clark Hill’s post.
The potential shutdown comes amid growing political scrutiny of the H-1B program. Texas Instruments and other firms have been criticized for continuing to hire foreign workers while laying off U.S. employees, The Dallas Express reported.
President Donald Trump has pledged to overhaul the visa lottery, tying approvals to the highest salaries offered, while Vice President JD Vance has accused companies of undercutting American labor.
As of this writing, no spending compromise has been announced. Democrats pressed for the inclusion of health care subsidies, while Republicans demanded, first, a short-term extension.