Navigating the Government Shutdown: What H-1B Workers and Employers Must Do Now

The current government shutdown presents unusual challenges for H-1B workers and their employers. Here's what you need to know immediately:

Key Takeaways

• USCIS continues processing the pending H-1B petitions during the shutdown, but other agencies, like the Department of Labor (DOL), are not fully operational. New H-1B filings—amendments, changes of employers, and changes of status—cannot be submitted because the DOL does not issue LCAs, which are required for H-1B filings.
   
• You may be able to use an existing LCA.
   
• "Extraordinary circumstances" protection is now available for late filings directly caused by the shutdown, but you must document the connection.
   
• Do not gamble with unlawful presence: If your I-94 is expiring, file for interim status (B-2, H-4, L-2, F-2, etc.) rather than hoping for USCIS mercy.
   
• The "last action rule" matters: Withdraw an interim status application carefully once the government reopens and your H-1B is filed. Consult counsel before withdrawing. Withdraw when you are reasonably sure your status is safe. If you do not withdraw a pending petition (B-2, H-4, L-2, F-2, etc.), you run the risk of it trumping your approved H-1B.
   
• Employers must act proactively: Document all shutdown-related delays now, prepare files in advance, and maintain compliance despite administrative difficulties.
   
• Evidence is required: If you invoke extraordinary circumstances, explanation/documentation of how the shutdown prevented timely filing is essential.

The Official Source: USCIS Statement on the Shutdown

The entire strategy for navigating this shutdown is grounded in the following official statement from USCIS, which essentially creates a temporary exemption for the timeliness of filings:

ALERT: USCIS will process H-1B...related Form I-129 petitions ...during the government shutdown. We recognize, however, that the shutdown may affect a petitioner’s ability to get required documentation (such as a labor condition application or a temporary labor certification from the U.S. Department of Labor), which may delay their ability to file Form I-129 or Form I-129CW.

If an H-1B... petitioner meets all other applicable requirements and submits evidence establishing that the primary reason they did not timely file an extension of stay or change of status request was due to the government shutdown, we will consider the government shutdown an extraordinary circumstance beyond the petitioner’s control when we determine whether to excuse their failure to timely file the extension of stay or change of status request. We will monitor the situation closely and publish additional guidance if needed. Find additional information in Vol. 2, Part  A, Chapter 4 of the USCIS Policy Manual.

Source: https://www.uscis.gov/working-in-the-united-states/h-1b-specialty-occupations

Understanding the USCIS Announcement

The USCIS statement is a critical lifeline, but it must be read with caution. It confirms that USCIS will continue to adjudicate H-1B-related Form I-129 petitions that are already pending in its queue. This is reassuring for those who filed before the shutdown began.

However, the key problem—and the reason for this entire guide—is that the shutdown prevents new filings by eliminating the ability to obtain required documentation from other agencies, specifically Labor Condition Applications (LCAs) from the U.S. Department of Labor.

This distinction is crucial. New H-1B filings—extensions, amendments, changes of employer, and changes of status—cannot be submitted because the DOL is not issuing the LCAs that must accompany every H-1B petition. Without an approved LCA, USCIS will reject your H-1B filing outright.

The silver lining is the commitment to consider the government shutdown as an "extraordinary circumstance beyond the petitioner's control" when determining whether to excuse late filings. This is a significant relief, but it comes with important conditions and limitations that we must understand clearly.

What Are "Extraordinary Circumstances"?

Under normal circumstances, USCIS applies strict timelines for filing extensions and changes of status. The Immigration and Nationality Act and regulations require that extension petitions generally be filed before the current status expires. Failure to do so can result in accrual of unlawful presence, bars to reentry, and denial of the petition.

However, USCIS Policy Manual Volume 2, Part A, Chapter 4 provides for discretionary relief when "extraordinary circumstances" prevent timely filing. Historically, USCIS has interpreted this standard narrowly. Examples that have been accepted include:

• Serious illness or hospitalization of the beneficiary or petitioner
• Death of an immediate family member
• Natural disasters affecting the petitioner's ability to file
• USCIS errors, such as lost files or incorrect advice from USCIS officials

What makes something an "extraordinary circumstance"? The key elements are:

• The circumstance must be beyond the petitioner's control—not mere oversight, poor planning, or administrative convenience.
• The circumstance must have directly prevented timely filing.
• The petitioner must provide credible evidence establishing the causal connection between the circumstance and the delay.

The government shutdown now joins this limited category of acceptable justifications, but only when it is genuinely the reason for late filing.

The DOL Bottleneck: Why New H-1B Filings Are Impossible

Let's be clear about what the shutdown means practically. The Department of Labor's iCERT system, which processes LCA applications, is not operational during the shutdown. No new LCAs are being approved. Since every H-1B petition must be accompanied by an approved LCA, this creates a complete bottleneck for:

• H-1B extensions for workers whose status is expiring
• H-1B amendments (changes in job duties, location, salary, etc.)
• Changes of H-1B employer
• Changes of status to H-1B from other visa categories

This means that even though USCIS is working and ready to process H-1B petitions, you cannot file new ones. The only H-1B petitions moving forward are those already submitted before the shutdown began.

Workaround for the Bottleneck: Using Pre-Certified LCAs

While the core problem of the shutdown is the inability to obtain new Labor Condition Applications (LCAs) from the DOL, a narrow but important workaround exists for certain employers: using an already approved LCA that is still valid but not currently in use.

An LCA is generally valid for up to three years from its start date, and it certifies a specific job at a particular location for a specific salary. Many companies routinely certify LCAs in advance or have unused LCAs that were filed for previous employees who departed or for anticipated positions that were never filled.

How You Might Be Able to File NOW:
If your employer has a pre-certified LCA on file that covers the position you need to file for—be it an extension, amendment, or new change of employer petition—you may be able to proceed with filing Form I-129 with USCIS immediately. The LCA itself is not rendered invalid by the government shutdown; only the ability to generate a new one is blocked.

This approach is only viable if the pre-certified LCA meets all three critical requirements for the beneficiary's current or proposed job:

1. Job Location: The certified work location on the LCA must be the same area as the site for the job being filed.
2. Job Duties: The duties and occupational classification must be substantially the same.
3. Required Wage: The proposed salary must meet or exceed the Prevailing Wage already certified on that LCA.

Critical Caveat: Do not, under any circumstances, use a pre-certified LCA if the job involves a material change in location or duties, or if the certified prevailing wage is now lower than the required wage. The LCA must be accurate to avoid an eventual denial, RFE, or even future DOL scrutiny. This strategy applies to positions where the need existed before the shutdown, and an existing, unused, and accurate LCA is already available. Consult your counsel immediately to check your LCA database.

 

Scenario-by-Scenario Guidance

Scenario 1: You Filed Your H-1B Extension Before the Shutdown

If you filed your H-1B extension petition before your status expired and before the shutdown began, you are in the best position. You have the benefit of the 240-day (or more; ask your lawyers) automatic work authorization while your extension is pending. USCIS continues adjudicating these pending petitions during the shutdown.

What you should do:

• Monitor your case closely: Check your online USCIS account regularly for any Requests for Evidence (RFEs) or updates on your case status.
• Maintain employment authorization: You can continue working for up to 240 days beyond your status expiration date while your timely-filed extension is pending.
• Respond promptly to any RFEs: If USCIS requests additional evidence, respond within the timeframe provided. If the RFE requests documentation from a shutdown-affected agency, explain the situation in your response and provide the requested evidence as soon as the agency reopens.

Scenario 2: Your H-1B Status Is Expiring During the Shutdown

This is the most precarious situation. Your current H-1B status expires on a date during the shutdown, and you cannot file an extension because DOL is not processing LCAs. This is precisely the situation where USCIS's extraordinary circumstances designation becomes critical—but also where you cannot afford to gamble on USCIS mercy.

Immediate Warning on Unlawful Presence: Do not wait for the government to reopen. If your I-94 expires and you have not filed an extension or change of status, you begin accruing unlawful presence from the day after your status expires. This has consequences far worse than a late filing, including potential three- or ten-year bars to reentry.

What you must do:

• File for interim status immediately: Do not wait. File Form I-539 to change status to B-2, H-4 (if your spouse has H-1B status), L-2 (if your spouse has L-1 status), F-2 (if your spouse has F-1 status), or another applicable category before your H-1B status expires. This prevents unlawful presence accrual.
• Document the shutdown's impact: Typically, a brief statement from the employer and counsel should suffice, as the shutdown problem is well-known.
• Prepare your H-1B extension petition: While waiting for the government to reopen, prepare all necessary documents for your H-1B extension so you can file immediately once DOL resumes LCA processing and approves your LCA.
• Plan your withdrawal strategy: Once the government reopens and your H-1B extension is filed, you will need to withdraw your interim status application strategically.

Scenario 3: You Need to Change Employers or Amend Your H-1B

If you are planning to change H-1B employers or need to file an amendment (for a new location, changed job duties, or salary adjustment), you face the same LCA problem as extension filers. Your new employer or your current employer must obtain an LCA before filing the new H-1B petition.

What you should do:

• Understand your current status: If your current H-1B status remains valid (not expiring soon), you can continue working for your current employer in your currently approved capacity while waiting for the shutdown to end. You cannot start the new job or implement the amendments until the new petition is filed and approved (or you have portability under AC21, which still requires filing the petition).
• Delay employment changes if possible: If you're changing employers, consider whether you can delay your start date with the new employer until after the shutdown ends and the new H-1B petition can be filed.
• Document the delay: If the shutdown is preventing a time-sensitive employment change, document this thoroughly.
• For amendments: If you need to amend your H-1B due to material changes in your employment, consult with counsel about whether you can delay implementing those changes until after the shutdown ends.

Scenario 4: You Need to Change Status to H-1B

If you are currently in F-1, L-1, H-4, B-2, or another status and your employer needs to file an H-1B change of status petition, you are blocked from filing until DOL resumes LCA processing. This is true whether you're filing a cap-subject petition or a cap-exempt petition.

What you should do:

• Maintain your current status: Ensure your current status remains valid. If you're in F-1 OPT or STEM OPT, monitor your EAD expiration date. If you're in L-1, H-4, or another employer-dependent or derivative status, ensure the principal's status remains valid.
• If your current status is expiring: File for another interim status if necessary to prevent a gap in lawful status.
• For cap-subject H-1B petitions: If you won the H-1B lottery and are waiting to file your petition, but the shutdown is preventing filing during the petition window, document this meticulously. USCIS has not yet provided specific guidance for this scenario, but the extraordinary circumstances principle should apply.
• Prepare everything in advance: Have all documentation ready so your employer can file immediately when DOL resumes operations.

The Critical Warning: Do Not Gamble With Unlawful Presence

We cannot overemphasize this point. USCIS's announcement about extraordinary circumstances is not a blanket guarantee of forgiveness. It is discretionary relief that USCIS may grant if you provide sufficient evidence. 

Do not risk unlawful presence accrual. If your I-94 expires and you have not filed an extension or change of status, you begin accruing unlawful presence from the day after your status expires. Accrue 180 days or more of unlawful presence, and you trigger bars to reentry: three years for -- days of unlawful presence, ten years for more than days.

These bars are serious. If you accrue unlawful presence and then depart the United States, you cannot return for the duration of the bar—even if you later obtain approval of your H-1B petition. The petition approval only gives you the ability to apply for a visa; it does not override the unlawful presence bar.

The prudent course is straightforward: file for interim status before your current status expires.

Interim Status Options

• B-2 Visitor Status: This is often the most accessible option. File Form I-539 to change status to B-2 before your H-1B expires. As long as you file before your status expires, you stop accruing unlawful presence even if your H-1B status expires while the B-2 application is pending.
• Dependent Statuses: If your spouse holds H-1B, L-1, or F-1 status, you can file to change to the corresponding dependent status (H-4, L-2, or F-2). This maintains your lawful status and, in some cases, may preserve your work authorization (H-4 EAD if you qualify).
• Other Options: Depending on your circumstances, other interim statuses might be available. Consult with immigration counsel to identify the best option for your situation.

The "Last Action Rule": Critical Timing for Withdrawals

Here is where careful planning becomes essential. The "last action rule" in change of status cases provides that when you have multiple applications pending that would change your status, the last action USCIS takes controls your status outcome.

Let's walk through the problem scenario:

1. Your H-1B status expires on February 15, 2025.
2. The government is shut down, so you cannot file your H-1B extension.
3. On February 10, 2025, you file Form I-539 to change status to B-2 to prevent unlawful presence.
4. The government reopens on February 25, 2025.
5. On March 1, 2025, your employer obtains an LCA and files your H-1B extension as a change of status.

Now you have two applications pending: B-2 change of status and H-1B change of status.

Here's the danger: If USCIS approves your B-2 (or H-4, L-2, etc.) application after your H-1B extension petition is filed, that B-2 approval becomes the "last action." This outcome is catastrophic for your employment:

1. Loss of Work Authorization: You are immediately converted to B-2 status, which absolutely does not permit employment. Your work authorization ends the day the B-2 is approved.
2. Forced Departure and Re-entry: When USCIS finally approves your H-1B petition, they will likely approve it only as a petition approval (Form I-797 without a new I-94 card attached). Why? Because the B-2 approval was the last action on your status. This forces you to depart the U.S. and apply for an H-1B visa at a U.S. Consulate abroad to resume your H-1B status. This negates the whole point of filing a change of status to begin with.

How to Navigate This Properly

The solution requires strategic withdrawal of your interim status application once you've filed your H-1B petition:

1. File the H-1B extension/change of status as soon as possible after the government reopens and you obtain your LCA.
2. Wait a reasonable period to ensure your H-1B filing is properly accepted and in the USCIS system. This might be a few days to a week.
3. Withdraw your pending interim status application once you're reasonably confident your H-1B petition is filed and accepted.

Consult with immigration counsel before withdrawing: The timing of this withdrawal is critical and depends on multiple factors:

• How close is USCIS to adjudicating your interim status application?
• Has your H-1B petition been properly receipted by USCIS?
• What is your risk tolerance for a gap in status?

The phrase "reasonably sure your status is safe" means: you've confirmed your H-1B petition has been filed, receipted by USCIS, and is in the processing queue. At that point, withdrawing your interim status application prevents it from trumping your H-1B approval.

If you do not withdraw your pending interim status petition, you run the very real risk of USCIS approving it after your H-1B is adjudicated, which could convert you to B-2 (or H-4, L-2, F-2) status instead of H-1B status, even though your H-1B petition was approved.

Do not attempt to navigate this without counsel. The timing is technical, the stakes are high, and individual circumstances vary. An experienced immigration attorney can advise you on the optimal timing for your specific situation.

What Employers Must Do Now

Employers have both obligations and opportunities during this shutdown period:

Immediate Documentation Requirements

Create a contemporaneous record: Document all attempts to obtain LCAs from DOL. This includes:

• Screenshots of the iCERT system showing unavailability or error messages
• Dates and times of attempted LCA submissions
• Any DOL announcements or notices regarding shutdown impacts on LCA processing
• Internal emails and communications about the shutdown's effect on your H-1B filings

Identify affected employees: Review your roster of H-1B employees and identify:

• Those whose H-1B status expires during the shutdown or within 60 days after a projected reopening
• Those who need amendments filed
• Those planning changes of employer to your company
• Any cap-subject H-1B winners whose petition filing window overlaps with the shutdown

Communicate with employees: Inform your H-1B workers about:

• The shutdown's impact on their ability to file extensions or amendments
• The need to file for interim status if their H-1B is expiring
• Your plan to file H-1B petitions immediately when the government reopens
• The "last action rule" and the need to coordinate withdrawal of interim status applications

Preparation Work

Even though you cannot file new H-1B petitions during the shutdown, you can—and should—prepare everything else:

• Draft the H-1B petitions: Prepare Form I-129, support letters, and all supporting documentation except the LCA.
• Prepare cover letters: Draft detailed cover letters explaining the extraordinary circumstances created by the shutdown, including:
  • Specific dates showing when you would have filed absent the shutdown
  • Documentation of attempts to obtain LCAs
  • Timeline of the employee's status expiration and your filing intentions
  • Request for USCIS to exercise favorable discretion given the extraordinary circumstances
• Gather supporting evidence: Collect all evidence supporting the H-1B petition itself (educational credentials, experience letters, financial documents, etc.) so you're ready to file immediately.
• Prepare LCA applications: Draft your LCA applications in the iCERT system so you can submit them the moment DOL resumes processing.

Employment Authorization Compliance

This is a critical concern. Employees cannot work beyond their status expiration date unless:

• They filed a timely extension (triggering the 240-day or more automatic extension of work authorization), or
• They have independent work authorization (such as an EAD, though this is rare for H-1B holders)

If an employee's H-1B status expires during the shutdown and you could not file an extension because of DOL's closure, the employee loses work authorization on the expiration date. This creates compliance issues under I-9 requirements.

What you should do:

• Recommend to employees to file an interim status: While filing the protective B-2 application prevents unlawful presence, it does not grant work authorization. The safest course is for the employee to stop working immediately upon H-1B status expiration and until the H-1B extension is filed and receipted by USCIS. Once the H-1B is timely filed, the employee may be able to resume work under the 240-day rule, but this timing is a gray area requiring consultation with counsel.
• Consider unpaid leave: For employees whose status expires during the shutdown, place them on unpaid leave until the H-1B extension can be filed and receipted, and you confirm their eligibility to resume work under the 240-day rule.
• Document everything: Maintain detailed records of the shutdown's impact on your ability to file extensions and your efforts to maintain compliance.
• Consult with both immigration and employment counsel: This situation implicates both immigration law and employment law, including potential wage and hour issues.

Post-Shutdown Action Items for Employees and Employers

The moment the government reopens and DOL resumes LCA processing, you must act with speed and precision. Any delay after the reopening will undermine your claim that the shutdown prevented timely filing.

1. Submit LCA applications immediately: File all pending LCA applications on the first day DOL's system is operational.
2. Monitor LCA processing closely: DOL will likely face a backlog. Track your LCA applications and follow up as needed.
3. File H-1B petitions immediately upon LCA approval: Don't delay even a day after receiving LCA approval. The longer you wait, the weaker your extraordinary circumstances explanation becomes.
4. Use Premium Processing if available: Consider paying for premium processing to accelerate adjudication of H-1B petitions filed with extraordinary circumstances explanations and to resolve the employee's work authorization status faster.
5. Coordinate with employees on withdrawing interim status: Work with employees and their immigration counsel to time the withdrawal of any interim status applications appropriately, based on the last action rule guidance above.

Invoking Extraordinary Circumstances: Documentation and Evidence

When you file an H-1B extension after the shutdown ends, your petition must include compelling evidence that the shutdown directly prevented timely filing. Here's what USCIS expects:

Essential Documentation (Maybe an overkill :-))

• Government announcements: Include copies of:
  • USCIS's announcement regarding extraordinary circumstances during the shutdown
  • DOL notices about suspension of LCA processing
  • News articles or government websites confirming the shutdown's dates and scope
• Proof of DOL's unavailability: This is the most critical evidence. You need documentation showing that DOL was not processing LCAs, such as:
  • Screenshots of the iCERT system showing error messages or unavailability during the shutdown
  • Dated attempts to submit LCA applications during the shutdown
  • DOL's announcement that they were not processing LCAs
• Timeline of your compliance efforts: Provide a detailed chronology showing:
  • The H-1B status expiration date
  • When you initiated the extension process (before the shutdown, if possible)
  • Specific dates you attempted to obtain an LCA during the shutdown
  • The date the government reopened
  • The date DOL approved your LCA
  • The date you filed the H-1B petition
• Evidence of prompt action post-shutdown: Show that you filed your H-1B petition immediately after obtaining the LCA once the government reopened. Any significant delay between the shutdown's end and your filing weakens your claim that the shutdown was the cause of late filing.

The Cover Letter

Your H-1B petition should include a detailed cover letter that:

• States the extraordinary circumstances claim upfront: Begin by clearly stating that you are invoking USCIS's extraordinary circumstances designation for the government shutdown.
• Cites the USCIS announcement: Reference the specific USCIS alert that designated the government shutdown as an extraordinary circumstance for H-1B filings.
• Explains the causal connection: Detail exactly how the shutdown prevented timely filing.
• Presents your evidence systematically: Reference each piece of supporting documentation and explain its relevance.
• Emphasizes your diligence: Highlight that you acted promptly before the shutdown and filed immediately after obtaining the LCA post-shutdown.
• Requests favorable discretion: Respectfully request that they exercise this discretion favorably given your documented circumstances.

If you filed for interim status (B-2, H-4, etc.) because your H-1B was expiring during the shutdown, explain this in your cover letter:

"The beneficiary filed Form I-539 to change status to B-2 on February 10, 2025, to maintain status during the government shutdown. This application was filed solely as a protective measure during the extraordinary circumstances of the shutdown. Upon filing this H-1B extension petition, the beneficiary will withdraw the pending B-2 application. We request that USCIS adjudicate this H-1B petition as a change of status."

This transparency helps USCIS understand your full situation and prevents confusion about multiple pending applications.

Special Considerations and Complex Scenarios

Premium Processing

Once the shutdown ends and you file your H-1B petition with an extraordinary circumstances explanation, consider whether premium processing is worth the additional fee. Premium processing provides:

• 15-calendar-day adjudication
• Faster resolution of your status situation
• Quicker determination of whether USCIS will accept your extraordinary circumstances explanation

For employees whose work authorization is in limbo, the premium processing fee may be a worthwhile investment.

Dependents

Don't forget H-4 dependents. If your H-1B extension is delayed due to the shutdown, your dependents' H-4 status and work authorization (if they have H-4 EADs) are similarly affected.

• File interim status for dependents too: If you file for B-2 status for yourself, file for B-2 status for your H-4 dependents as well.
• Include dependents in your H-1B petition: When you file your H-1B extension with extraordinary circumstances, include your dependents' H-4 extension applications.

Travel During the Shutdown

If your H-1B status expires during the shutdown and you travel abroad, you complicate your situation significantly:

• Change of status becomes moot: If you depart the United States, any pending or future change of status application is automatically deemed abandoned. Your H-1B petition can still be approved, but only as a petition, requiring you to apply for an H-1B visa abroad.
• Unlawful presence concerns: If you depart after accruing unlawful presence, you may trigger reentry bars.

Advice: Avoid international travel if your H-1B status is expiring during the shutdown unless you've already filed your extension or secured interim status. If travel is unavoidable, consult with immigration counsel before departing.

What If USCIS Denies Your Late-Filed Petition Despite Extraordinary Circumstances?

Even with the shutdown designated as an extraordinary circumstance and strong supporting documentation, USCIS retains discretion to deny late-filed petitions. If this happens:

• Immediate Response Options: File a Motion to Reconsider or a Motion to Reopen within 30 days of the decision.
• Longer-Term Strategies: Explore whether other visa categories (L-1, O-1, TN, E-2, etc.) might be available.

The best defense against denial is overwhelming documentation at the initial filing stage. Don't assume USCIS will automatically excuse late filing just because they announced the shutdown as an extraordinary circumstance. Make your case explicitly, comprehensively, and convincingly.

Conclusion

The government shutdown creates real challenges for H-1B workers and employers, but USCIS's designation of the shutdown as an extraordinary circumstance provides a potential pathway through these difficulties. To maximize your chances of successfully navigating this period:

1. Understand what's actually affected: USCIS processes pending petitions, but new filings are blocked by DOL's inability to process LCAs during the shutdown.
2. Don't gamble with unlawful presence: File for interim status if your I-94 is expiring. USCIS discretion is not a guarantee.
3. Document everything contemporaneously: Evidence created during the shutdown is far more credible than after-the-fact explanations.
4. Master the "last action rule": Withdraw interim status applications strategically once your H-1B is filed and receipted, but do this with counsel guidance.
5. Act immediately when the government reopens: Swift filing after shutdown bolsters your extraordinary circumstances claim. Every day of delay weakens it.

The shutdown is frustrating, but with meticulous planning and proper documentation, most people should be able to navigate these challenges successfully. The key is taking the situation seriously, not assuming USCIS's extraordinary circumstances designation is a blank check, and consulting with experienced immigration counsel when your situation involves complex timing issues like the "last action rule."

We will continue monitoring the shutdown's impact and provide updates as the situation develops. For specific questions about your individual circumstances, consult with an immigration attorney who can review your case and provide tailored guidance.