FAQ: What If I Can’t File H1B During 60 Day Grace Period No LCA?

By Richard T. Herman, Immigration Attorney – Herman Legal Group
Published October 31, 2025

Quick Answer

If your employer cannot file a new H-1B petition because the Department of Labor (DOL) has stopped processing Labor Condition Applications (LCAs) during a government shutdown, you cannot submit a transfer or extension until that LCA is certified.

To protect your lawful status, you may need to file a change of status (to B-2, F-1, or H-4), depart the United States, or pursue a bridging strategy with help from an experienced immigration attorney.

1. What happens if I can’t file a new H-1B because the shutdown has halted LCA processing?

When the DOL FLAG System is offline, employers cannot submit or receive LCAs — blocking all new H-1B filings. Employers cannot submit any files or documentation to USCIS for H-1B petitions without a certified LCA. Because USCIS requires a certified LCA with every petition, the process stops completely.

The process cannot move forward until the employer files the required documents after LCA certification.

Important Note:

There is no alternate filing route. Employers must wait until the DOL resumes operations.

2. How does the H-1B 60-day grace period work?

Under 8 C.F.R. § 214.1(l)(2), H-1B workers have 60 days (or until their I-94 expires, whichever is shorter) to:

• File a new H-1B petition
• File a change of status
• Depart the U.S.

The 60-day grace period is only available to those who have been maintaining nonimmigrant status up to the point their employment ends.

After 60 days, you’re out of status, and late filings are typically denied. Maintaining valid nonimmigrant status is essential for eligibility to file a new petition or change status during the grace period. The 60-day period for changing status is a hard limit, and overstaying it can negatively affect future visa applications. See the USCIS Grace Period Policy (archived).

3. Why is the Labor Condition Application (LCA) required before filing an H-1B petition?

The DOL H-1B Program Overview explains that:

• The LCA guarantees the foreign worker is paid the prevailing wage.
• The LCA process is designed to protect foreign workers by ensuring they are paid the prevailing wage and treated fairly.
• The employer certifies that hiring won’t adversely affect U.S. workers.

USCIS rejects any petition filed without a certified LCA — even during a shutdown.

4. How does a federal shutdown affect H-1B petition filings?

During a shutdown: Consulting an immigration attorney can provide personalized advice and navigate the complexities of immigration situations.

• The Department of Labor suspends all LCA and PERM processing.
• Processing of various work visas, including H-1B and others, can be impacted due to the suspension of LCA and PERM.
• USCIS remains open (fee-funded) but cannot process incomplete petitions.
• Employers and workers face delays.

While USCIS processes continue, they cannot proceed with petitions for work visas that lack a certified LCA.

Fast Fact:

The 2018–2019 shutdown lasted 35 days, delaying thousands of LCAs. See the Federal Register Notice on Resumption of Operations.

5. What legal options do I have if my employer can’t file an H-1B transfer due to no certified LCA?

Expert Tip:

File a B-2 or B1 change before Day 60 to preserve status. Once the DOL reopens, your employer can file the new LCA and petition.

6. Can I change to B-2 visitor status while waiting for DOL to reopen?

Yes. Filing a B-2 application before your 60-day grace period ends lets you stay lawfully in the U.S. without working. You must file a status application (such as Form I-539) before your grace period ends to maintain lawful presence. Eligibility for a change of status may depend on your status prior to submitting the application. B-2 visitor status allows individuals to remain in the U.S. for tourism but prohibits employment. When the shutdown ends, you can bridge back to H-1B.

Key Insight:

The B-2 change is often the safest short-term option.

7. Is it better to change to F-1 student or H-4 dependent status during the shutdown?

• F-1: For those planning to study or use OPT later. You can apply for a new nonimmigrant status as F-1 if you are accepted into an SEVP-approved school and demonstrate financial capability.
• H-4: Best if your spouse is in valid H-1B status. Applying for a new nonimmigrant status as H-4 may also allow you to apply for employment authorization (EAD) if certain conditions are met, such as your spouse having an approved I-140 petition.

Both must be filed before Day 60. The 60-day grace period begins the day after termination of employment.

8. Can I depart the U.S. and return once my new H-1B is filed?

Yes. Leaving before Day 60 prevents unlawful presence. After the DOL FLAG System reopens and your petition is approved, you may re-enter with your visa and approval notice.

Note: Upon re-entry, you may be asked to present your job offer letter and petition approval notice at the port of entry.

9. Will USCIS pause or extend the 60-day grace period because of the shutdown?

No. As of October 31, 2025, USCIS has not extended or paused the grace period. However, in rare cases, USCIS may grant a discretionary extension based on individual circumstances and supporting evidence, but this is not standard policy.

10. Does DHS provide exceptions during shutdowns?

The Department of Homeland Security (DHS) will determine eligibility for exceptions on a case-by-case basis. Only case-by-case. DHS reviews each request individually and may grant relief only if the circumstances warrant it. Late filings may qualify under “extraordinary circumstances.” Check the USCIS Newsroom for updates.

11. Can my employer reuse a previously certified LCA?

Only if it’s still within its validity period and identical in job title, location, and wage. Otherwise, a new LCA is required once the DOL reopens.

12. Can the DOL backdate LCAs after a shutdown?

No. Certification dates reflect actual processing dates. The certification date also marks the start of the authorized validity period for the LCA. See the DOL H-1B Program FAQs.

13. What if my 60-day grace period expires before reopening?

You’ll lose your legal status and begin accruing unlawful presence if the grace period expires before your case is reopened. Accruing unlawful presence of 180 days to less than one year triggers a three-year bar on re-entry to the U.S. upon departure. File a B-2 or F-1 change before Day 60 to stay lawful.

14. How can I maintain lawful presence while waiting?

File a change of status before your grace period ends, as maintaining status is essential to remain in compliance with immigration law. Keep proof of the shutdown as evidence of delay. Having maintained status throughout the process is critical for eligibility for future immigration benefits.

15. What documents should I keep to prove shutdown delay?

• DOL press releases or screenshots (ensure these are credible evidence supporting your claim of shutdown-related delay)
• Employer emails confirming readiness to file (should serve as credible evidence of your intent and the shutdown’s impact)
• Attorney letters explaining impact (must be credible evidence detailing how the shutdown affected your case)
• FLAG submission records (provide as credible evidence to support your request)

16. How did USCIS handle past shutdowns?

During the 2018–2019 shutdown, USCIS and DOL confirmed delays but issued no blanket relief. Notably, USCIS did not approve any blanket extensions or exceptions during the previous shutdown. See the Congressional Research Service Report on Shutdowns and Immigration.

17. What are the risks of falling out of status?

• Loss of status and work authorization
• Accrual of unlawful presence
• 3- or 10-year re-entry bars
• Jeopardizing future eligibility for permanent residence (green card) applications
• Future visa denials

18. What can employers do to stay compliant?

• Document attempts to file LCAs
• Avoid benching without consent
• Continue paying required wages
• The sponsoring employer must ensure all compliance requirements are met during the shutdown
• Consult legal counsel

See the DOL Employer Compliance Guide.

19. Must employers keep paying wages during the shutdown?

Yes — unless the employee is on voluntary leave. If the employee is transferring to a new employer, wage obligations may shift once the new employer’s petition is filed. Otherwise, wage obligations remain. Employers must notify USCIS of terminations and offer return transportation.

20. What does “exceptional circumstances” mean for a late-filed H-1B petition?

According to USCIS’s official H-1B page, an H-1B petition generally must be filed on time. However, if a petition is filed after the registration or filing period closes, USCIS may excuse the delay if the petitioner demonstrates that the delay was due to extraordinary or exceptional circumstances beyond their control.

Examples of exceptional circumstances that may justify a late filing include:

• Natural disasters or severe weather events
• Serious illness or medical emergencies
• Loss of documents due to theft or fire
• Compelling circumstances, such as severe hardship or other urgent situations, that prevent timely filing

21.What kinds of “exceptional circumstances” might USCIS consider?

USCIS has not published a precise list of acceptable reasons. Instead, they evaluate each case on its specific facts. Based on past immigration guidance and adjudication trends, the following may be viewed as exceptional (but not guaranteed):

• Severe illness or incapacitation of the petitioner or a key employee responsible for the filing.
• Natural disasters or major system outages, such as hurricanes, floods, or long-term power failures.
• Documented USCIS or courier delivery errors, where the petition was mailed on time but delayed through no fault of the petitioner.
• Major USCIS technical system failures that prevented timely electronic filing or registration.
• Extraordinary emergencies, such as war, terrorism, or large-scale national crises (e.g., COVID-related office closures).

Any status approved based on exceptional circumstances will depend on the strength and credibility of the evidence submitted to USCIS.

USCIS emphasizes that ordinary negligence, clerical mistakes, or lack of preparation do not qualify as exceptional.

22. How does USCIS decide if an exception applies?

When a petition is filed late, USCIS will review the reason for delay and the supporting evidence provided. The petitioner must clearly document:

• What happened (the cause of delay),
• Why it was beyond their control, and
• What steps were taken to file as quickly as possible afterward.

If USCIS determines the justification is insufficient, petition approval is unlikely and the petition will be rejected or denied as untimely.

23. Does this exception apply to H-1B cap registrations?

No. This “exceptional circumstances” policy generally applies after registration, specifically at the new petition filing stage—not to the initial electronic registration period. If an employer misses the registration deadline, there is no mechanism to request an exception or late registration, except in rare situations where USCIS itself caused the issue.

For details, seeUSCIS’s H-1B Electronic Registration Process guidance.

24. Can I rely on the exceptional circumstances policy?

No—do not rely on this exception as a strategy.USCIS treats late filings very narrowly and reviews requests for exceptions on a case by case basis. Even with strong documentation, there’s no guarantee your petition will be accepted. This policy exists primarily for extraordinary emergencies, not as a safety net for missed deadlines.

In short: plan ahead, track USCIS filing periods carefully, and assume no leniency will be granted.

25. What should I do if I believe exceptional circumstances apply?

If your filing was delayed by a genuine emergency:

1. Prepare a detailed explanation letter describing what happened, when, and why it was unavoidable.
2. Include all relevant files and documentation — such as hospital records, courier tracking data, weather alerts, USCIS outage notices, or any other supporting files that demonstrate your circumstances.
3. Submit your petition and supporting files immediately once the issue is resolved.
4. Consult with an immigration attorney to ensure your justification, evidence, and files are persuasive.

26. What happens if USCIS rejects the petition as untimely?

If USCIS refuses to accept your late H-1B filing, the petition will be rejected or denied. The foreign national may need to:

• Wait until the next H-1B cap season,
• Seek other visa options (like O-1, L-1, or TN, if eligible),
• Consider applying for a different visa category if eligible,
• Secure a new job and have the new employer file a petition within the grace period, or
• Depart the U.S. to avoid unlawful presence.

27. How can immigration attorneys help?

Attorneys can:

• File timely B-2/F-1 applications
• Prepare delay documentation
• Advise employers on benching rules
• File bridging petitions after reopening
• Advise on how to change employers and utilize job portability provisions during the grace period

For help, contact the Herman Legal Group.

28. Which law firms handle H-1B and shutdown cases?

29. What makes Herman Legal Group different?

• Over 30 years of experience
• Multilingual staff (10+ languages)
• Personalized shutdown strategies
• Strong Ohio presence in Cleveland and Columbus

Learn more at the Herman Legal Group – The Law Firm for Immigrants.

30. How can I schedule a consultation in Cleveland or Columbus?

Visit the Book a Consultation page or call 1-800-808-4013. Virtual appointments are available nationwide.

31. Key Takeaways

• No LCA = No H-1B filing
• Grace period continues during shutdown
• File a change of status before Day 60
• Keep shutdown documentation
• Employers must stay compliant
• Timely filings are crucial to secure new employment and maintain visa status
• Consult an immigration lawyer immediately

At a Glance

• Grace period does not pause
• LCAs resume only after reopening
• You may be able to begin working for a new employer once USCIS receives the new petition, depending on your situation
• File something (B-2, F-1) to stay lawful
• Keep documentation
• Seek legal help early

About Richard T. Herman

Richard T. Herman is a nationally recognized immigration attorney and founder of the Herman Legal Group, known as “The Law Firm for Immigrants.” He has more than 30 years of experience and co-authored Immigrant, Inc.: Why Immigrant Entrepreneurs Are Driving the New Economy.