No LCA Government Shutdown H 1B Grace Period: What to Do If You’re in a 60-Day Grace Period (2025 Guide)

By Richard T. Herman, Esq., Immigration Attorney – Herman Legal Group

Need to Know (At-a-Glance)

If your employer cannot file or obtain a Labor Condition Application (LCA) due to a government shutdown, your immigration status may hang in the balance — particularly if you’re already in the 60-day grace period after termination. The grace period for H-1B workers continues to run regardless of LCA certification delays caused by a government shutdown.

Key Alert (October 2025): USCIS has confirmed that it will continue to process H-1B, H-2A, H-2B, and CW-1 Form I-129 petitions during the shutdown. However, DOL closures may prevent employers from obtaining LCAs or labor certifications, causing unavoidable filing delays. Expected delays in visa processing and other immigration functions may occur due to reduced staffing and limited funding at affected agencies, impacting services at USCIS, DOL, and DOS.

Shutdowns don’t stop the 60-day grace period clock — but USCIS may consider “extraordinary circumstances” if the delay is truly beyond your control.

Expert Advice:

Attorney Richard Herman says:

“H1B holders within the 60 day grace period, if unable to file a new H1B due to lack of LCA, should consider filing the I-539 to seek a change to B-1 or B-2. If the original employer withdraws the original H1B before the I-539 is filed, USCIS has been known to rule that the the person is out of status.”

Introduction:

A government shutdown, specifically a federal government shutdown, can have significant impacts on the Department of Labor (DOL) and other immigration services. When the federal government shuts down, operations at the DOL—including the processing of Labor Condition Applications (LCAs) and other essential immigration services—may be delayed or suspended.

Additionally, various immigration programs and services, such as the Conrad 30 J-1 Waiver Program, religious worker visa program, and E-Verify, may also experience disruptions during a federal government shutdown.  This can create uncertainty for employers and foreign nationals, especially those relying on timely LCA approvals and the 60-day grace period for H-1B workers.

Fast Fact: Why the LCA Matters

Before any employer can file an H-1B petition, it must first obtain a certified LCA from the Department of Labor. Certified LCAs are required for H-1B petitions, and a government shutdown disrupts the processing of labor condition applications and DOL certifications, causing delays in obtaining these essential approvals. USCIS requires a certified Labor Condition Application (LCA) to be filed with each H-1B petition, which cannot occur during the government shutdown.

• Without that certification, USCIS will reject the petition.
• During a shutdown, the DOL’s FLAG portal (flag.dol.gov) may be offline, leaving employers unable to act. The shutdown also affects the ability to file PERM applications, as the processing of PERM applications and DOL certifications is halted; in such cases, alternative filing methods, such as mailing the PERM application, may be necessary when online systems are unavailable.

For real-time agency status updates, see:

• USCIS Newsroom
• Department of Labor Updates

Section 1 – Understanding the 60-Day Grace Period

Under 8 C.F.R. § 214.1(l)(2), eligible nonimmigrant workers (H-1B, L-1, O-1, E-2, etc.) have 60 days after employment termination to find new sponsorship, change status, or depart the U.S. Maintaining H-1B status during the grace period is critical, as failure to do so can impact future immigration options.

The grace period begins the day after employment ceases. If H-1B status is not maintained, re-entry to the U.S. at a port of entry may be denied, and future entry could be restricted.

Important Note: The grace period is not paused by shutdowns, weekends, or system outages.

See: USCIS Policy Manual, Vol. 2, Pt. B, Ch. 4

Section 2 – What Happens When No LCA Can Be Filed

Section 3 – Practical Steps While in the Grace Period

1. Document every attempt to comply

• Save screenshots, emails, and timestamps showing the FLAG outage.

Expert Tip: Evidence of good-faith effort strengthens any later extraordinary-circumstance claim.

2. File a change of status if needed

• A Form I-539 (B-2 or B-1) filing before day 60 preserves lawful stay. The H-1B grace period allows individuals to file for a change of status, like a B-2 visitor visa, to maintain lawful presence while waiting for the DOL to reopen. Note: Citizenship and Immigration Services (USCIS) will process these filings, but delays may occur during a government shutdown. USCIS I-539 Form

3. Avoid travel – departing cancels the grace period.
4. Seek new sponsorship immediately – once the LCA portal reopens, new employers can file.
5. Consult counsel early – timing missteps are status killers. Contact our office for guidance on H-1B transfer, extensions, amendments, and other case-specific immigration issues. Book Consultation → Herman Legal Group

Section 4 – Related Questions (FAQ)

Q1: Does the shutdown freeze my grace-period clock?

No. The regulation provides no pause. The 60 days run continuously. However, in certain shutdown-related cases, USCIS may exercise discretion when evaluating late filings or extraordinary circumstances.

Q2: Can I work while LCA is pending?

Not until the new H-1B is filed and receipted. You should also watch for any official notice from USCIS regarding your case status.

Q3: Can I reenter the U.S. after leaving?

Yes — but only with a new petition and visa.

Q4: What if I’m based in Cleveland or Columbus, Ohio?

Local tech and healthcare employers are heavily affected. Herman Legal Group handles shutdown-related filings statewide and nationally.

Section 5 – Comparison of Law Firms Experienced in Employment Immigration (2025)

Section 6 – Essential Resources

• USCIS Grace Period Guidance
• Department of Labor FLAG Portal
• USCIS Newsroom Shutdown Advisory
• AILA Practice Alerts
• Herman Legal Group – H-1B Grace Period Guide

E-Verify and I-9 Verification Process During a Government Shutdown

During a government shutdown, the E-Verify system—used by many employers to confirm the immigration status of new hires—may be temporarily unavailable. E-Verify is a critical tool for employers to verify that employees are authorized to work in the United States, but when the federal government shuts down, the system can go offline, leaving employers unable to complete the usual verification process.

Section 7 – Filing Late Due to Shutdown: “Extraordinary Circumstances” Exception

ALERT (USCIS Guidance):

USCIS will process H-1B, H-2A, H-2B, and CW-1 Form I-129 petitions during the government shutdown. We recognize, however, that the shutdown may affect a petitioner’s ability to get required documentation (such as a labor condition application or a temporary labor certification from the U.S. Department of Labor), which may delay their ability to file Form I-129 or Form I-129CW. Immigration services USCIS (U.S. Citizenship and Immigration Services) is the agency responsible for making these determinations regarding late filings and extraordinary circumstances.

USCIS has announced that if a petitioner meets all other requirements and submits evidence showing that the primary reason for a late filing was the shutdown-related unavailability of the LCA , it will treat that delay as an extraordinary circumstance beyond the petitioner’s control. USCIS is responsible for determining whether to accept late H-1B petitions due to such extraordinary circumstances.

This means USCIS may excuse an untimely extension of stay or change of status filing under 8 C.F.R. § 214.1(c)(4). This discretion applies to H-1B petitions and may also affect individuals seeking United States citizenship.

What This Means in Practice

• You can still submit a late H-1B filing if the shutdown blocked your LCA.
• You must include credible evidence (e.g., screenshots, agency notices, letters).
• USCIS will decide case-by-case — there’s no automatic forgiveness.

Richard T. Herman’s Advisory:

“Do not count on USCIS leniency. While the agency acknowledges the shutdown as an extraordinary circumstance, it’s still discretionary. If possible, protect yourself with a timely B-2 or F-1 status filing to avoid falling out of status.”

For official reference, see:

• USCIS Policy Manual, Vol. 2, Part A, Chapter 4

Disclaimer: The information provided here is for informational purposes only and does not establish an attorney client relationship. For personalized legal advice, please consult with a qualified attorney.

Section 8 – Conclusion

Shutdowns create a perfect storm: your 60-day clock runs even as the DOL portal freezes. The key is acting swiftly, documenting thoroughly, and not assuming leniency.

Key Insight:

USCIS may excuse a late filing — but preparation and proactive strategy are your best defense.

Herman Legal Group has guided thousands of professionals through grace-period crises, government shutdowns, and delayed filings.

📎 Schedule a Consultation → Herman Legal Group

Key Takeaways

• The 60-day grace period is not paused during a shutdown.
• LCA unavailability can delay filings, but document every effort.
• File a B-2 or F-1 change of status if no petition can be filed.
• USCIS may forgive late filings only if you prove extraordinary circumstances.
• Don’t rely on leniency — act within 60 days or seek counsel immediately. The H-1B grace period is a period of up to 60 consecutive days or until the end date on the individual’s I-94 record, whichever is shorter.