Government Shutdown: What Employers Need To Know About Immigration Services

The federal government shutdown is disrupting some immigration functions. Most significantly, the U.S. Department of Labor (DOL)'s FLAG system is down, preventing the filing of LCAs, prevailing wage requests, and PERM applications. While U.S. Citizenship and Immigration Services (USCIS) and the U.S. Department of State (DOS) remain operational due to fee-based funding, employers should prepare for delays across multiple touchpoints, including filings, visa processing, onboarding, and compliance audits.

U.S. Department of Labor (DOL) – FLAG System and OFLC Operations

DOL's Foreign Labor Application Gateway (FLAG) is currently inaccessible. Employers cannot file Labor Condition Applications (LCAs), Prevailing Wage Determinations (PWDs), or PERM applications. Since certified LCAs are required for H-1B, H-1B1, and E-3 petitions, new filings are effectively on hold until the system is restored.

During shutdowns, the Office of Foreign Labor Certification (OFLC) ceases all operations, including case processing, audits, and responses to inquiries. The Board of Alien Labor Certification Appeals (BALCA) and administrative law judge dockets are also placed on hold. Public systems and websites are typically taken offline.

Importantly, the DOL may suspend or toll certain deadlines:

• LCAs: Employers should not be penalized for filing delays caused by the shutdown.
• PWDs: Recruitment timelines linked to wage determinations may be extended.
• PERM: Strict recruitment and filing deadlines (e.g., the 180-day recruitment window and 30-day filing period) are expected to be tolled.

Why H-1B Petitions Still Cannot Be Filed Without LCAs

Even though the DOL suspends deadlines, employers still may not submit H-1B petitions to USCIS without an LCA certified by the DOL. This is because:

• The Immigration and Nationality Act requires a certified LCA to be included with every H-1B petition.
• USCIS has no authority to waive this statutory prerequisite.
• The tolling of deadlines protects employers from DOL-specific compliance violations, but it does not change the filing requirements with USCIS.

As a result, H-1B filings that depend on new LCAs are frozen until the FLAG system comes back online. Employers who already have certified LCAs in place may still proceed with filings.

U.S. Citizenship and Immigration Services (USCIS)

USCIS remains open because it is fee-funded. However, several programs that rely on appropriated funds—including the Conrad 30 J-1 Waiver Program, and the Special Immigrant Religious Worker Visa Program—are suspended until funding resumes. Premium processing remains available, but cases dependent on DOL certifications might stall.

In prior shutdowns, USCIS has sometimes accepted late filings if the delay was directly tied to the shutdown, though reliance on such discretion may be risky and should be evaluated with counsel.

U.S. Department of State (DOS) – Consulates and Waivers

Consular visa and passport operations continue under a fee-based structure, though a prolonged shutdown may reduce staffing or limit services at smaller consulates. J-1 waiver adjudications through the Waiver Review Division may be delayed. Employees traveling abroad for visa stamping should plan ahead and allow additional time.

U.S. Customs and Border Protection (CBP)

CBP ports of entry remain open as essential services, but processing times at airports and land borders may lengthen. Employees should be reminded to carry complete documentation of their immigration status when traveling internationally.

U.S. Immigration and Customs Enforcement (ICE)

ICE continues enforcement and removal operations, and the Student and Exchange Visitor Program (SEVP) remains operational. However, certain compliance activities—such as I-9 audits and Notices of Inspection—might pause during the shutdown.

E-Verify and the Optional Alternative Remote I-9 Verification Process

While E-Verify was non-operational since the date of the government shutdown, operations have been restored. Employers may now run E-Verify for all hires onboarded since the shutdown and continue using the system.

The Optional Alternative Remote I-9 Verification Process

In August 2023, DHS introduced an optional alternative process that allows qualified E-Verify employers to complete the identity and work authorization verification steps remotely, instead of conducting an in-person physical document inspection. To use this option, employers must:

• Be enrolled in E-Verify and in good standing;
• Review copies of the employee's documents remotely and conduct a live video interaction with the employee presenting the documents; and
• Create the corresponding E-Verify case within three business days of the employee's start date.

During the shutdown, employers may continue to use the remote verification process for new hires. However, they must still complete the I-9 verification steps within the three-day window, even if they cannot create the E-Verify case immediately. Once the system is restored, cases should be created promptly. Employers may wish to refrain from taking adverse action against employees while E-Verify cases remain pending due to the outage.

Federal contractors with E-Verify obligations should monitor instructions from contracting agencies, as compliance modifications may be necessary.

Social Security Administration (SSA)

During past shutdowns, the SSA has halted the processing of new Social Security Number applications. This may delay onboarding for certain foreign national employees who require SSNs.

Key Takeaways for Employers

• H-1B and other LCA-dependent filings are delayed until the FLAG system is restored; deadlines for LCAs, PWDs, and PERM filings may be tolled.
• USCIS remains open, including premium processing, but filings dependent on DOL certifications are blocked.
• Consular and port-of-entry delays are likely, and J-1 waiver adjudications may pause.
• ICE enforcement continues, but audits and inspections are paused.
• E-Verify is offline; complete I-9s as usual, consider using the remote verification process if eligible, and reconcile E-Verify cases once restored.
• SSA delays may affect new hires requiring Social Security Numbers.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.