USCIS Issues Potential Safeguard Against Delayed Filings Due to the Ongoing Government Shutdown

The ongoing government shutdown, effective October 1, 2025, continues to cause delays in filing immigration petitions, and in many cases, inability to file timely petitions. Although USCIS remains open and continues to process petitions, other agencies like the U.S. Department of Labor (DOL) are closed, making it impossible to file Labor Condition Applications (LCAs), prevailing wage requests, and PERMs.  

As DOL is not processing LCAs, employers in most circumstances are unable to file H-1B petitions since they cannot obtain a certified LCA for that filing. In recognizing a petitioner’s inability to obtain required documentation, the U.S. Citizenship and Immigration Services (USCIS) has issued guidance for petitioner’s that are unable to file timely petitions. Specifically, USCIS states that they “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.” In essence, a petitioner must submit evidence that the primary reason they were unable to file a timely petition was due to the government shutdown.  

Despite, USCIS’s stated willingness to forgive a late filing, failure to timely file an extension of status or change of status may result in not just loss of work authorization, but also the possible accrual of unlawful presence pursuant to INA 212(a)(9)(B) and INA 212(a)(9)(C) . As such, U.S. petitioners and foreign national employees may still want to consider alternate avenues for avoiding unlawful presence and/or maintaining work authorization, such as filing a change of status to another temporary status (e.g., B-1/B-2, H-4, F-1),  exploring alternative work-authorized status (e.g., TN for certain Canadians and Mexicans, E-2 for Australians, H-1B1 for Singaporeans and Chileans, L-1 for certain employees of multinational organizations, work authorization for certain spouses, etc.), and working from outside of the United States. Please note that certain applications and petitions may not be eligible for premium processing and may take months to be reviewed, meaning they may not result in issuance of work-authorized status before the government reopens.  

Accordingly, we recommend pursuing a path to avoid accruing unlawful presence despite USCIS’s flexibility in accepting untimely filings due to the government shutdown. MMH will continue to monitor the situation. If you have questions on the impact of the government shutdown on your case, please contact our skilled attorneys at Minsky, McCormick & Hallagan, P.C. at (312) 427-6163 or schedule a consultation online.