USCIS May Excuse Late H1B Filings Caused by Government Shutdown

As the federal government shutdown drags on into its third week with no clear end in sight, the U.S. Citizenship and Immigration Services (USCIS) has provided helpful guidance for petitioners who are unable to timely file due to the closure of other essential agencies, such as the U.S. Department of Labor (DOL).

While the USCIS is a fee-funded agency and continues to process petitions, the ongoing shutdown has made it impossible for most employers to file certain types of cases. Most notably, employers generally cannot file H1B petitions, as the DOL is not processing the required labor condition applications (LCAs). Recognizing this impasse, the USCIS has indicated it will show some flexibility.

Shutdown Considered an “Extraordinary Circumstance”

In a recent update to its website, the USCIS confirmed it will continue processing H1B, H2A, H2B, and CW1 petitions. The agency also confirmed it may excuse a failure to timely file certain requests for immigration benefits if the delay is a direct result of the shutdown. Specifically, if a petitioner fails to timely file a request for an extension of stay or a change of status, the USCIS will consider the government shutdown to be an extraordinary circumstance beyond the petitioner’s control. To qualify for this relief, the petitioner must submit evidence establishing that the shutdown was the primary reason for the untimely filing.

Conclusion

While the inability to obtain an LCA still prevents the filing itself, the USCIS guidance provides a vital safety net, ensuring that individuals will not be penalized for a delay that is entirely outside of their control. Petitioners in this situation should document their circumstances and the impact of the shutdown on their ability to file. The Murthy Law Firm will continue to monitor the situation closely and provide updates as they become available.

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