Proving Extraordinary Circumstances for Late H-1B Extension: Shutdown

U.S. immigration officials have told employers and workers that a late H‑1B extension can still be approved after a government shutdown if the filer proves an extraordinary circumstance and shows the delay was caused by the shutdown itself. The policy, which USCIS applies case by case, matters for thousands of H‑1B professionals whose status clocks don’t stop when Washington stalls. It also affects staffing plans for companies that rely on the Labor Condition Application (LCA) that must be certified before an H‑1B extension can be filed. When the Department of Labor is offline, no LCAs move, and an on‑time filing can quickly become impossible.

When USCIS may excuse a late filing

USCIS says it may excuse a late filing when the delay was:
– Beyond the person’s control
– Directly prevented timely filing
– Supported by credible proof

In shutdown scenarios, that usually means the filer could not get an LCA because the Department of Labor’s systems were unavailable, and then filed as soon as possible once operations resumed. The agency stresses the word may — there is no automatic pass, and officers weigh the record against strict criteria. This approach mirrors how USCIS treats similar requests for other visa categories when an emergency blocks a deadline and the applicant acts quickly once the barrier lifts.

Practical mechanics that create the problem

An H‑1B extension requires a certified LCA before a petition can be sent to USCIS using Form I‑129. The LCA is requested through the Department of Labor’s online portal. If that portal is closed because of a funding lapse, there is no lawful way to complete the LCA step.

USCIS officers know this, which is why the agency has historically signaled that a shutdown can qualify as an extraordinary circumstance. But the burden sits with the filer to connect the dots in writing, with evidence, and without gaps.

What to include in the packet: the three pillars

USCIS guidance and practitioner advice center on three evidentiary pillars:

1. Clear invocation and official notices
   • Start the packet with an explicit statement that you are invoking extraordinary circumstances based on a government shutdown.
   • Attach official notices from USCIS and the Department of Labor confirming the dates and scope of the closure.
   • Useful items: the USCIS shutdown notice, the Department of Labor announcement that LCA processing was suspended, public statements, and screenshots of government webpages during the outage.
   • Officers look for a clean timeline.
2. Proof the Department of Labor systems were unavailable
   • Because an LCA must be approved before filing, show dated system notices from the Department of Labor portal.
   • Include email messages showing attempted log‑ins or error messages during the shutdown window.
   • Consider sworn statements (under penalty of perjury) from HR managers attesting they tried and could not submit an LCA.
3. Evidence of prompt action after reopening
   • Demonstrate how soon the LCA was filed after the portal returned, how quickly it was certified, and when Form I‑129 was sent to USCIS.
   • Short, explained lags (e.g., printing checks, gathering signatures, booking courier pickup) are acceptable; long, unexplained gaps are not.
   • Back the timeline with receipts, tracking data, and emails to present a stronger case.

The stronger and more verifiable the timeline, the better. Officers want to see the shutdown as the primary cause of the late filing, not one of several contributing factors.

What USCIS officers examine beyond timing

USCIS will also verify that H‑1B eligibility otherwise remains intact:
– Same job
– Same employer‑employee relationship
– Same or higher wage level
– Correct worksite/location as covered by an LCA

A late filing excused by extraordinary circumstances does not fix substantive problems such as:
– Non–specialty occupation roles
– Degree/field mismatches
– Incorrect LCA worksite

A case can fail on any of those points even if the shutdown explanation checks out.

Cover letter and documentation strategy

Employers often open with a concise cover letter that:
– States the request to excuse a late H‑1B extension due to a government shutdown
– Cites the USCIS notice recognizing the shutdown period
– Attaches Department of Labor materials showing LCA processing was unavailable
– Presents a date‑by‑date timeline: when last LCA covered the worker, when the new LCA was attempted, what errors appeared, and how quickly the company filed after services resumed

Recommended attachments:
– Government notices and screen captures from primary sources
– Dated proof of system unavailability and error messages
– Sworn statements or affidavits from HR
– Delivery receipts, email timestamps, and LCA certification dates

USCIS has emphasized that credible evidence from a primary source (government notices, portal banners) carries more weight than secondary reports, although press coverage can help set the scene.

Tactical planning and backups

Because USCIS relief is discretionary, many attorneys recommend backup planning when a status end date is near and the government looks unstable. Common strategies:
– File a change of status to B‑2 visitor with Form I‑539 to create a bridge (filed before the grace window closes)
– File early where possible to build a cushion
– Prepare the entire H‑1B extension package ahead of time so it can be lodged the same day the LCA clears after a shutdown
– Keep the core H‑1B case strong (same employer, same or higher wage, consistent duties)

Note: a bridge to visitor status can buy time but does not substitute for the extraordinary‑circumstance showing that governs the late H‑1B extension decision.

Filing tools and official links

The petition itself rides on Form I‑129, which USCIS publishes with instructions and filing addresses on its official website. The LCA is known in the Department of Labor system as ETA 9035.

Helpful official links to cite in cover letters:
– Form I‑129: https://www.uscis.gov/i-129
– Department of Labor H‑1B portal (FLAG): Department of Labor H‑1B portal (FLAG)

Using these direct sources in the packet helps draw a clear line between what the law requires and what the shutdown interrupted.

Weighing premium processing

Premium processing can yield a quick decision but may also trigger a rapid request for evidence if an officer wants more on the shutdown link. Filers should weigh:
– Cost
– Speed
– Strength of the timeline and evidence

Delivery records and email timestamps are frequently used to show the filing occurred as soon as reasonably possible.

Documentary discipline and best practices

Advocates advise filers to:
– Document every point with verifiable records
– Keep copies of earlier LCAs
– Record when each step was taken
– Preserve emails with counsel and staff showing prompt action
– Avoid claims that cannot be proven

This meticulous approach mirrors USCIS practice after other disasters (hurricanes, wildfires) and fits the three‑part test: beyond control, direct prevention, and credible evidence.

Human stakes and final takeaways

The consequences of a missed H‑1B extension are real: a worker can lose status, employment, and even face removal despite years of lawful presence and work. Families’ housing, schooling, and healthcare plans can be disrupted.

USCIS’s ability to review late filings under the extraordinary‑circumstance standard offers a narrow path to fairness, but it demands:
– Careful evidence
– Quick action once systems return
– A strong underlying H‑1B case

According to analysis by VisaVerge.com, the cleanest approach is:
1. Start with the rule
2. Show the shutdown’s effect on the LCA process
3. Show immediate action once the barrier fell

This order aligns with how decision‑makers read files and with the three‑part USCIS test. In a system where the word “may” drives outcomes, clarity and timing are the two levers filers can control.