What a Federal Government Shutdown Could Mean for the H-2 Programs and U.S. Immigration Processing

As Congress approaches the October 1, 2025 deadline to fund the federal government, many employers are asking how a shutdown could affect immigration programs, particularly the H-2A and H-2B visa program. The 2026 fiscal year begins on October 1, but without appropriations or a stop-gap funding bill, key federal agencies may suspend operations.

This article outlines how a shutdown could affect immigration-related agencies and what employers should do to prepare.

Department of Labor (DOL) – The Most Immediate Impact

The Office of Foreign Labor Certification (OFLC) relies on congressional appropriations. If funding lapses, OFLC will shut down the Foreign Labor Application Gateway (FLAG) system, which processes essential applications:

• Prevailing Wage Determinations (ETA-9141)

• H-2B Applications for Temporary Employment Certification (ETA-9142B)

• H-2A Applications for Temporary Employment Certification (ETA-9142A)

• Labor Condition Applications (LCAs)

• Permanent Labor Certifications (PERM)

All pending cases will freeze, and new filings will be impossible until the government reopens. This means employers needing certified LCAs, prevailing wages, or labor certifications will face delays in filing petitions with USCIS.

OFLC has previously issued limited flexibilities for PERM deadlines after shutdowns, but such relief is not guaranteed. Employers should expect backlogs once processing resumes.

U.S. Citizenship and Immigration Services (USCIS)

USCIS is largely fee-funded, which allows it to continue operating during a shutdown. Employers can expect:

• Continuation of filings: USCIS will keep accepting and adjudicating petitions such as H-2B extensions, H-1B, I-140, and I-485.

• Premium Processing: Expected to remain available.

• Programs impacted by appropriations: E-Verify, Conrad 30 J-1 doctors, and the non-minister religious worker program may be suspended.

E-Verify Suspension

E-Verify will be completely unavailable during a shutdown. Employers cannot create new cases, resolve Tentative Non-Confirmations (TNCs), or access case records. The “three-day rule” will be suspended for cases affected by the outage, and employees will have additional time to resolve TNCs.

Employers must still complete Form I-9 within three business days of an employee’s start date. Once E-Verify resumes, affected cases should be submitted with a note indicating “Federal Government Shutdown” as the reason for delay.

In past shutdowns, USCIS has allowed flexibility for late I-129 filings caused by the closure, but employers should not rely on this alone and should consult counsel if facing urgent filing deadlines.

Department of Homeland Security (DHS)

DHS will continue most core functions. According to contingency plans:

• About 14,000 DHS employees may be furloughed, but nearly 260,000 will continue working.

• Inspection and law enforcement personnel will remain on duty at ports of entry.

• Immigration and Customs Enforcement (ICE) will scale back policy and auditing functions, including Form I-9 audits, but detention-related operations will continue.

Customs and Border Protection (CBP)

CBP officers are “essential personnel” and will continue to report for duty. Employers and foreign workers can expect:

• Ports of entry and airports will remain open.

• Cross-border adjudications (such as TN and L-1 admissions) will continue.

• Some ports may experience staffing shortages, leading to longer wait times.

Department of State (DOS)

Visa processing at U.S. consulates and embassies is fee-funded, so operations are expected to continue. Interviews abroad should move forward as scheduled. However:

• If a shutdown is prolonged and fee reserves run low, smaller posts may reduce or suspend routine operations.

• Emergency and diplomatic visa services will remain available.

Practical Guidance for Employers

A government shutdown primarily affects the Department of Labor, while USCIS, CBP, and DOS can continue most functions. To minimize disruption:

• File early – Submit ETA-9141 prevailing wage requests, LCAs, and PERM filings well before the deadline, where possible..

• Plan for delays – Build in extra time for DOL-dependent processes that will freeze during the shutdown.

• Monitor E-Verify – Keep documentation of cases affected by system outages.

• Support traveling employees – Advise foreign nationals with visa appointments to attend as scheduled, but anticipate possible slowdowns abroad.

• Stay in communication – Work with counsel to adjust case strategy if deadlines or travel plans are impacted.

Conclusion

For H-2A and H-2B employers, the most critical issue in a shutdown is the shutdown of the FLAG system, which halts prevailing wage requests and ETA-9142B filings. While USCIS, CBP, and consulates abroad will continue many operations, employers who rely on seasonal and temporary workers should act now to get ahead of potential delays.

At Kirchner Law PLLC, we are monitoring developments closely and will continue to update clients as new guidance becomes available. Employers should take proactive steps now to avoid disruptions later in the season.