What Happens to H-1B Cap-Exempt Petitions During a Government Shutdown

Universities and nonprofit research organizations can still move forward on H-1B cap-exempt cases during a federal government shutdown — but only up to the point where they need action from the Department of Labor (DOL). Because USCIS is fee-funded, it keeps processing and adjudicating H-1B petitions during a shutdown, including cap-exempt filings tied to higher education and nonprofit research. The roadblock occurs earlier: DOL halts immigration case processing during a shutdown, and that includes Labor Condition Applications (LCAs), which every H-1B petition must have. Without a certified LCA, many new cap-exempt filings can’t be properly submitted to USCIS until DOL resumes work.

This split between agencies produces a practical partial pause: USCIS remains open for business, but new filings that require a fresh LCA are stuck waiting on DOL’s certification to restart.

Why the agency split matters

• USCIS funding model: USCIS relies on applicant fees, so it generally stays open even when Congress doesn’t pass new appropriations.
• DOL funding model: DOL relies on annual appropriations. During a shutdown it suspends immigration-related functions — including LCA certification.
• Practical effect: USCIS will continue to accept and adjudicate petitions it already has and will process any new filings that do include a certified LCA. But if an employer needs a new LCA, the petition stalls until DOL resumes operations.

The role of the LCA in cap-exempt H-1B cases

Cap-exempt status shields qualifying employers from the annual H-1B lottery, but cap-exempt cases still must follow core H-1B rules — including the LCA requirement.

• The LCA is where the employer attests to wage and work condition commitments.
• The LCA must be certified by DOL before filing Form I-129 with USCIS.
• During a shutdown, the cap-exempt advantage remains in place, but the LCA step is the gatekeeper.

The shutdown’s main impact shows up not within USCIS, but with the Department of Labor’s pause on LCA certification.

What USCIS has done in past shutdowns

• USCIS has acknowledged real-world consequences for filing timelines and has accepted late extension or change-of-status filings when delays were directly caused by shutdowns.
• That flexibility does not eliminate the LCA requirement; it only allows for explanations of timing gaps after DOL restarts.
• USCIS has also confirmed that H-1B cap registration and fee payments are not affected by shutdowns — useful for employers managing both cap-subject and cap-exempt hires.

Other agencies’ status and downstream steps

• The Department of State and Customs and Border Protection (CBP) generally continue operations during shutdowns because they are fee-funded or considered essential.
• That means consular visa stamping and travel screening at the border generally continue as normal once a petition is approved.
• For applicants who already have an approved H-1B petition, post-adjudication steps (visa stamping, entry) remain available.

Practical effects for campus hiring and research projects

Hiring managers, HR teams, principal investigators, and department heads commonly face questions about drafting contracts, scheduling start dates, and announcing appointments.

Key points:

• If you have a previously certified LCA that covers the specific job and location, you can file the H-1B petition with USCIS and adjudication can proceed during the shutdown.
• If you need a new LCA (new job, new location, expired certification), the petition must wait for DOL to resume certification.
• The shutdown can clash with academic calendars, grant deadlines, and project timelines, potentially forcing delayed start dates or temporary remote arrangements.

Practical checklist for employers during a shutdown

1. Prepare paperwork in advance:
   • Assemble petition packets and beneficiary records so filings can go out immediately once DOL resumes.
2. Track LCAs closely:
   • Monitor expiration dates and determine whether existing LCAs still match the job and location.
3. Communicate clearly:
   • Explain to beneficiaries that USCIS remains operational but DOL’s LCA certification is paused.
   • Offer timelines for next steps once DOL reopens.
4. For extensions/changes:
   • If a valid certified LCA already exists, file the extension with USCIS to allow adjudication to continue.
   • If a new LCA is required, prepare to pause until DOL restarts and be ready to file immediately thereafter.

Simple sequence during a shutdown

• USCIS stays open and continues adjudicating H-1B petitions (including cap-exempt cases).
• DOL suspends LCA processing; new LCAs cannot be certified.
• New H-1B filings that need a fresh LCA are paused until DOL reopens.
• USCIS continues work on petitions already received and may accept late filings when delays were shutdown-related.
• Department of State and CBP continue visa stamping and admission processes.

Key takeaways for briefings to deans and HR partners

• H-1B cap-exempt petitions remain viable in terms of USCIS processing.
• Every H-1B petition still needs a certified LCA from DOL.
• During a shutdown, DOL does not certify LCAs, so new petitions requiring fresh LCAs must wait.
• USCIS will process petitions it already has, and has accepted late filings in past shutdowns for direct shutdown-caused delays.
• Visa stamping and border entry remain available through the Department of State and CBP once a petition is approved.

Practical planning tips (summary)

• Build a rolling calendar of H-1B-related deadlines tied to the academic year and grant cycles.
• Keep petition packets pre-assembled for fast filing when DOL resumes.
• Verify whether existing certified LCAs still match the job and location before a shutdown hits.
• Set internal communication protocols for updating beneficiaries, and suggest constructive steps they can take while waiting (e.g., assembling degree records).

Official references and final note

• H-1B petitions are filed on Form I-129. USCIS continues to receive and adjudicate these petitions during shutdowns.
• For Form I-129 filing instructions and editions, see the USCIS page: https://www.uscis.gov/i-129
• The LCA program is administered by the Department of Labor; LCA certification pauses during a shutdown and resumes once funding returns.

The bottom line: the cap-exempt path remains available in principle and USCIS continues to process what reaches it, but the single critical gap in a shutdown is the Department of Labor’s pause on LCA certification. Prepare now, file quickly when DOL reopens, and keep affected employees and candidates informed so they can plan under the circumstances.