In anticipation of a possible government shutdown this week, many employers are wondering how a shuttering of U.S. government agencies for budgetary reasons could impact or delay their U.S. immigration processing, exclusively handled by federal agencies.
The 2026 fiscal year for the government is set to begin on Wednesday, October 1, 2025. However, Congress has not been able to pass the requisite appropriations bills to allocate funding to federal agencies for the new fiscal year. The Senate chamber will vote again on Tuesday on a stop-gap measure, which would fund the government through November 21, 2025. If Congress does not act to pass the legislation, a variety of federal services could be disrupted as of October 1, 2025.
The following is an overview of current guidance issued by immigration-related agencies, along with notes on how these agencies have treated prior shutdown periods.
Department of Labor (DOL)
- The DOL's Office of Foreign Labor Certification (OFLC) has indicated that, if the federal government shuts down, OFLC would need to disable the Foreign Labor Application Gateway (FLAG) system, which is the primary case management system used to process labor certifications and wage determinations to support new visas. This means that the DOL would immediately stop processing Labor Condition Applications (LCAs), Prevailing Wage Determinations, and Permanent Labor Certifications (PERMs). Critically, this could prevent employers from making needed USCIS filings.
- If a shutdown occurs, we expect DOL would issue further guidance regarding flexibilities for employers with respect to the deadlines for filing of PERMs.
U.S. Citizenship and Immigration Services (USCIS)
- USCIS administers the U.S. immigration system. USCIS is a "fee-funded" agency, which means that applicants pay their own fees for USCIS to adjudicate their applications and USCIS does not receive federal appropriations to complete its work. Thus, there should be no interruptions or impact to standard USCIS filings made through USCIS for nonimmigrant or immigrant visas.
- However, if the DOL stops processing LCAs, which are underlying certifications required for many types of nonimmigrant visas (H-1B, E-3), employers could be prevented from or delayed in making the actual USCIS filings.
- Based on the January 2018 government shutdown, certain programs within USCIS that receive appropriated funds (E-Verify, Conrad 30 J-1 doctors, and non-minister religious workers) may be suspended or impacted by a shutdown.
- In the past, USCIS has, in some cases, exercised discretion to approve late-filed Form I-129 filings where the primary reason for the delay in filing was the government shutdown. However, we strongly caution clients from relying on this guidance alone and recommend contacting counsel in the event of a specific issue (such as impending visa expiration date for an employee) to discuss needed case strategy.
- In the event of a government shutdown, the E-Verify system will be completely unavailable. This means employers will not be able to access their E-Verify accounts to create an E-Verify case, run reports, enroll in E-Verify, or view or act on any case. Employees similarly will be unable to resolve Tentative Non-Confirmations (TNCs). E-Verify Customer Support and related services would also be closed. During the shutdown, the "three-day rule" for creating E-Verify cases would be suspended for cases affected by the unavailability of E-Verify. The period during which employees may resolve TNCs should be extended. The number of days that E-Verify is unavailable should not count toward the days employees have to begin the process of resolving their TNCs. As with prior shutdowns, we expect that USCIS would provide additional guidance regarding the "three-day rule" and time to resolve TNC deadlines once operations resume.
- Employers must still complete Form I-9 no later than the third business day after the employee's first day of employment (i.e., when an employee starts work for pay), and comply with all other Form I-9 requirements. Once the E-Verify system is again functional at the end of the shutdown, we advise that employers process the E-Verify inquiry on the employees who were subject to the shutdown freeze period. The E-Verify inquiry may trigger a question requesting why the employer is outside the three-day window. If not inserted as an option, we recommend considering typing: "Federal Government Shutdown" under the "other" drop-down selection.
Department of Homeland Security (DHS)
- DHS has issued new guidance outlining a contingency plan in anticipation of the 2025 government shutdown, noting that only about 14,000 DHS employees would be furloughed, compared to nearly 260,000 DHS employees who would keep working. For example, inspection and law enforcement personnel would be considered "essential" and would continue to work at border ports-of-entry.
- DHS states that its officers would be "[c]ontinuing passenger processing and cargo inspection functions at ports of entry."
- In past government shutdowns, Immigration and Customs Enforcement (ICE) did not serve any Notices of Inspections for Form I-9 audits. In its policy guidance this week, DHS notes that "[a]uditing" activities would cease during a shutdown, as with strategic planning and most policy functions. However, ICE estimates that approximately 19,626 employees out of its total 21,028 onboard employees would continue to be retained.
Customs and Border Protection (CBP)
- CBP is the federal law enforcement agency of DHS charged with regulating and facilitating international trade, examining cargo and passengers at ports-of-entry, collecting import duties, as well as enforcing U.S. regulations, including trade, customs, and immigration.
- Since inspection and law enforcement personnel are considered "essential," ports-of-entry should remain open to process passengers and border crossings. Thus, processing of visa applications (i.e., new employment-based visa requests, such as TNs or L-1s) at the border likely should not be impacted.
Department of State (DOS)
- Operations at U.S. embassies and consulates abroad to process and issue new U.S. visas and passports are generally fee-funded and should not be impacted by a potential government shutdown. However, consular operations can still be affected if operations cannot be sustained based on local conditions (e.g., as occurred during COVID-19). If there are insufficient fees to support staffing and operations, smaller posts could potentially close routine operations.
Conclusion
Practically, we caution employers to maintain awareness of the possible upcoming government shutdown and its impact on immigration-related filing deadlines for employees. We recommend conferring with counsel when needed to address possible immigration-related issues and questions.
Littler will continue to monitor the impact of the government shutdown on immigration processes and will provide updates on notable developments as they become available.
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.
