By Richard T. Herman, Esq.
Introduction
In a major relief to U.S. employers and skilled foreign workers, the U.S. Department of Labor (DOL) has resumed accepting and processing Labor Condition Applications (LCAs) and PERM Labor Certifications—despite the ongoing federal government shutdown.
Although the October 31, 2025 announcement from DOL was initially unclear about LCAs, the consensus view among immigration attorneys and industry experts is now that LCA processing has restarted through the FLAG System Portal. This means H-1B transfers and new petitions can once again be filed, restoring critical mobility for foreign professionals and employers alike.
Background — How the Shutdown Disrupted Immigration Filings
The federal government shutdown that began October 1, 2025 brought a near-complete halt to the DOL Office of Foreign Labor Certification (OFLC). Critical functions for H-1B and PERM filings were halted, creating significant delays in immigration processes.
During the shutdown:
- The FLAG portal went offline.
- Employers could not file LCAs, PERM applications, or Prevailing Wage Determinations (PWDs).
- USCIS could not accept new or amended H-1B petitions, since a certified LCA is a legal requirement under 8 U.S.C. § 1182(n).
- Thousands of H-1B workers were stuck, unable to transfer to new employers or extend status.
- The DOL’s Office of Foreign Labor Certification ceased all operations, including case processing and audits, during the shutdown.
The shutdown created cascading compliance and payroll risks for businesses dependent on global talent — especially universities, hospitals, and tech companies.
October 31 Announcement — Ambiguity and Clarification
On October 31, DOL issued a statement announcing a “continuation of limited activities” within the OFLC, confirming resumption of:
- PERM,
- H-2A, and
- H-2B Labor Certifications, as well as PWD requests.
However, the notice did not explicitly mention LCAs, leading to confusion among employers and attorneys.
Key Insight: Despite that omission, immigration law firms and corporate employers quickly confirmed that LCA filings through the FLAG portal were being accepted and approved.
This has now formed the consensus view that LCA processing has resumed, meaning: The Department of Labor’s Foreign Labor Application Gateway (FLAG) system has reopened during the federal government shutdown, allowing employers to proceed with filings.
- H-1B, H-1B1, and E-3 petitions can again be filed.
- Employers are receiving LCA approvals that had been pending since before October 1.
Sources: Department of Labor – OFLC Notice | Fragomen Update | BAL Immigration Alert | Herman Legal Group News Desk
What This Means for Employers and H-1B Workers
1. H-1B Transfers and Amendments May Proceed.
Since USCIS requires a certified LCA for any H-1B petition (Form I-129), the return of LCA processing re-opens the H-1B transfer pipeline. Employers can file new LCAs and then submit petitions to USCIS immediately. USCIS may excuse late H-1B filings due to the government shutdown if the petitioner provides evidence that the shutdown was the primary reason for the delay.
2. New H-1B, H-1B1, and E-3 Petitions.
Startups and multinationals can resume filing for new hires or status extensions without risking non-compliance.
3. Ongoing PERM and PWD Cases Move Forward.
DOL is also accepting new PERM Labor Certifications and Prevailing Wage Determinations, allowing employers to restart green-card sponsorship for skilled foreign workers.
4. Processing Delays May Continue.
Expect backlogs as thousands of applications accumulated during the month-long shutdown.
Expert Tip: Employers should file LCAs immediately to preserve compliance timelines and minimize delays for H-1B transfers. Include internal notes about shutdown disruptions in case of future audits.
Outstanding Questions — PERM Recruitment and Late Filings
While LCA processing is back on, uncertainty remains for PERM recruitment efforts that expired during the shutdown.
DOL has not yet clarified whether it will permit:
- Grace periods for recruitment that lapsed between October 1 and October 31, or
- Retroactive acceptance of PERM applications that could not be timely filed.
In prior shutdowns (2013 and 2018), DOL issued temporary guidance allowing a short window to submit expired recruitments. Stakeholders expect similar relief soon.
Fast Fact: A PERM application must be filed within 180 days of the start of recruitment. If the shutdown pushed an employer beyond that window, grace periods could be the difference between saving and restarting a green-card case.
Strategies for Employers and Immigration Attorneys
1. File LCAs Immediately
Employers should use the FLAG System Portal to submit LCAs as soon as possible. USCIS may accept concurrent H-1B filings with proof of LCA submission in limited situations.
2. Document Shutdown Delays
Maintain internal records showing attempted submissions or system outages. This documentation can serve as evidence of “good faith effort” if audited.
3. Coordinate USCIS Timelines
Work closely with immigration counsel to synchronize USCIS Form I-129 filings once the LCA is certified.
4. Monitor DOL and USCIS Updates
Check DOL OFLC Announcements and USCIS Newsroom for any changes to processing timelines. To qualify for USCIS’s discretion on a late filing, the petitioner must show that the shutdown was the direct cause of the delay and submit evidence.
5. Consult Experienced Counsel
Law firms such as the Herman Legal Group help employers develop compliance plans to mitigate risk and avoid status gaps.
Expert Commentary — Richard T. Herman’s View
“The DOL’s October 31 notice brought relief but also confusion,” explains Richard T. Herman, immigration attorney and founder of the Herman Legal Group. “While the announcement didn’t explicitly mention LCAs, it’s now clear that employers and workers can move forward with H-1B filings. The key is to act swiftly and maintain meticulous records of any shutdown-related delays.”
“This clarification ensures that America’s innovation economy — from Cleveland to Chicago to Detroit — doesn’t stall due to bureaucratic ambiguity.”
How to Check Your LCA or PERM Status
- DOL FLAG System Portal — Submit and track LCAs, PERMs, and PWD requests.
- OFLC Processing Times — Monitor backlog and approval trends.
- USCIS Case Status Tool — Track H-1B petition progress after LCA approval.
Expert Tip:
Expect sporadic FLAG downtime due to high volume. Try off-peak hours and document any failed submission attempts.
Frequently Asked Questions (FAQ)
1. Can I now file an H-1B transfer during the shutdown?
Yes. With LCA processing resumed, employers can file new LCAs and submit H-1B transfer petitions to USCIS.
2. Why was the DOL’s October 31 announcement unclear?
The notice listed PERM and PWD operations but omitted LCAs. Subsequent activity in the FLAG system confirmed LCAs are included.
3. Are PERM filings also being accepted?
Yes. Employers can again file PERM applications and PWD requests.
4. What about recruitment that expired during the shutdown?
We are awaiting formal DOL guidance. Past shutdowns included grace periods.
5. Can premium processing be used for H-1B transfers now?
Yes. USCIS premium processing remains available.
6. Is the FLAG portal fully functional?
Mostly yes, but users report occasional delays due to high volume.
7. How long will LCA approvals take?
Early reports suggest 24–48 hours for standard filings, subject to traffic.
8. Can I file a PERM with expired recruitment now?
Not yet — wait for DOL guidance before filing to avoid rejection.
9. Are H-2A and H-2B cases also moving forward?
Yes. Both programs are covered under DOL’s limited operations plan.
10. What should employers do if their LCA was stuck pre-shutdown?
Re-check the FLAG portal; many pending LCAs are now being approved.
11. Do I need to refile an LCA that expired during the shutdown?
Yes. LCAs expire after the validity period and must be re-certified.
12. Can universities and hospitals file H-1Bs for faculty and medical staff now?
Yes. With LCA resumption, H-1B filings for academic and medical roles are again possible.
13. How can I check DOL status updates directly?
Visit the DOL OFLC Newsroom for official announcements.
14. What if I filed a PERM and haven’t received confirmation?
Expect delays; contact the OFLC Help Desk if no update after two weeks.
15. Should employers consult an attorney before filing?
Absolutely. An immigration lawyer can ensure timely filing, document shutdown impact, and advise on grace-period options.
Midwest Regional Law Firm Comparisons
Employers across the Midwest depend on experienced immigration law firms to navigate DOL and USCIS processes:
- Herman Legal Group (Cleveland & Columbus, OH) — Nationally recognized for H-1B and PERM representation.
- Sarmiento Immigration Law Firm (Cleveland, OH) — Focus on employment and family-based cases.
- Robert Brown LLC (Columbus & Cincinnati, OH) — Full-service immigration practice.
- Margaret Wong & Associates (Cleveland & Chicago) — Long-standing Midwestern presence.
- Fragomen Worldwide (Chicago, IL & Detroit, MI) — Global corporate immigration leader.
Each firm confirms that LCA processing has resumed, enabling employers across Ohio, Michigan, and Illinois to resume critical hiring and transfer activity.
Key Takeaways
- DOL resumed limited OFLC operations October 31, 2025.
- LCA processing is back on, even though the initial announcement was unclear.
- H-1B transfers and new petitions can now proceed.
- PERM and PWD filings are accepted again.
- Guidance on expired recruitment for PERM cases is still pending.
- Employers should act quickly to file and document shutdown delays.
- Consult experienced immigration counsel to avoid compliance risks.
Resource Directory
- DOL FLAG Portal
- DOL OFLC Processing Times
- USCIS Form I-129 (H-1B Petition)
- Herman Legal Group H-1B Transfer Guide
- Herman Legal Group PERM Guide
- Book a Consultation with Herman Legal Group
