The Government Shutdown and Its Impact on Immigration Processes

As the U.S. federal government continues to experience a shutdown due to a lapse in congressional funding, many agencies and services have been disrupted though some essential operations remain active on limited budgets. While core immigration functions like U.S. Citizenship and Immigration Services (USCIS) continue operating (as it is primarily fee-funded), the Department of Labor (DOL), which oversees the PERM labor certification process, is directly affected.

While the U.S. employer is responsible for initiating the PERM labor certification and, ultimately, sponsoring a foreign worker for a green card, the process always begins with the Department of Labor (DOL). The DOL plays a central role in ensuring that hiring a foreign worker does not adversely affect the job opportunities, wages, or working conditions of U.S. workers.

Employers and foreign workers should be aware that a government shutdown can greatly impact and halt DOL processes such as Prevailing Wage Determinations (PWDs), PERM application reviews, and audit responses. Understanding how DOL operates under these circumstances is key to planning ahead and minimizing the impact on ongoing or upcoming employment-based green card cases.

Step 1: The DOL’s Role in Prevailing Wage Determination

The first stage of the DOL’s involvement in the PERM process is issuing the prevailing wage. Once the employer has established the minimum job requirements and job description, it must submit a Prevailing Wage Request (ETA Form 9141) electronically through the DOL website.

The prevailing wage rate represents the average wage paid to similarly employed workers in the same occupation and geographic area of intended employment.

When determining the prevailing wage, the DOL considers factors such as:

• The job title and duties
• The level of experience and education required
• The area of intended employment
• Travel or supervision requirements
• Other elements affecting job complexity and skill level

This step ensures that foreign workers are paid at or above the standard market rate, protecting the U.S. labor market and preventing wage undercutting.

Shutdown impact: Prevailing wage determinations is the first process to face delays during a shutdown, as DOL has frozen processing systems. Prevailing wage requests cannot be submitted and PWDS will not be issued until the FLAG system reopens. Employers should plan for slower turnaround times.

Step 2: Submitting the PERM Labor Certification Application

After completing the mandatory recruitment process and observing the quiet period, the employer files the PERM Labor Certification Application (ETA Form 9089) with the DOL.

The DOL then reviews the application to ensure compliance with all regulatory requirements, including:

• The employer’s recruitment efforts
• The stated minimum requirements for the position
• The qualifications of the sponsored foreign worker

The purpose of this review is to confirm that there are no “able, willing, qualified, or available” U.S. workers to fill the offered position. In short, the DOL’s responsibility is to protect U.S. workers while allowing employers to fill legitimate skill shortages.

Shutdown impact: As DOL systems and personnel are unavailable, PERM application processing and submission has paused temporarily. Applications should be submitted as soon as the FLAG system reopens. Once the shutdown ends, backlogs may cause significant delays.

Step 3: DOL Audits and Compliance Reviews

Because the PERM system is attestation-based, employers certify compliance with DOL regulations without submitting recruitment evidence upfront. To maintain program integrity, the DOL implements a quality control system through audits.

There are two types of DOL audits:

• Random audits: Conducted to ensure general compliance across all cases.
• Targeted audits: Issued when potential red flags are detected, such as unusual job requirements, prior denials, or inconsistencies in documentation.

Audits give the DOL an opportunity to verify that employers are following lawful recruitment procedures and not tailoring job requirements to exclude qualified U.S. applicants.

Shutdown impact: Audits and responses have experienced suspension during the shutdown period. Employers should maintain complete documentation and be ready to respond promptly once DOL operations resume.

Step 4: PERM Certification, Denial, and Appeal Options

If the DOL determines that the PERM application is complete and compliant, it will certify the application. Certification means that the DOL has verified there are no qualified U.S. workers for the position, allowing the foreign worker to proceed to the next step—filing the immigrant petition (Form I-140) with U.S. Citizenship and Immigration Services (USCIS).

If the application is incomplete or noncompliant, the DOL will issue a denial. Employers may still have options to appeal the decision through a Request for Reconsideration filed with the Certifying Officer or a Request for Review from the Board of Alien Labor Certification Appeals (BALCA).

Shutdown impact: Certification and denial notices are delayed. Employers should track case updates closely when possible.

The Importance of a Legally Defensible “Minimum Qualifications” Test

A key component of every PERM case is establishing and applying the minimum qualifications test—the employer’s legally defined criteria for determining whether a U.S. worker is qualified for the position.

Most of the employer’s time in the PERM process is spent developing and implementing this test correctly. Two common issues can derail the process:

1. A qualified U.S. worker applies for the job.
   If a minimally qualified U.S. worker applies, the employer must generally offer the position to that individual or abandon the PERM process and restart in the future.

2. DOL issues an audit for substantive or procedural issues.
   Even when no U.S. worker applies, DOL may audit the case to determine whether the employer properly applied the minimum qualifications and followed all procedural rules.

Substantive issues often arise from inconsistencies between the job duties and the listed requirements, while procedural issues typically involve timing or recruitment documentation errors.

Why the DOL’s Oversight Matters

Even during a government shutdown, the Department of Labor’s oversight role is crucial. DOL serves as the gatekeeper in the employment-based green card process. From setting the prevailing wage to certifying or denying applications, DOL oversight ensures that the hiring of foreign workers does not disadvantage the U.S. labor market.

While shutdowns may pause federal operations, the regulatory obligations under PERM remain unchanged. Employers must continue to meet wage, recruitment, and recordkeeping requirements to avoid setbacks when the DOL resumes full functionality.

Successfully navigating the PERM process requires accuracy, documentation, and compliance at every stage. By defining clear job requirements, conducting lawful recruitment, and maintaining proper records, employers can minimize risks and move forward smoothly in sponsoring foreign workers for permanent residency.

For over 25 years, Reddy Neumann Brown PC has focused solely on U.S. employment-based immigration, and works with employers to establish best practices when navigating the PERM labor certification process. If you are in need of a U.S. work visa or permanent residency, speak with one of our immigration lawyers. Please contact us online, call our Houston business immigration office directly at 713-953-7787 or schedule a consultation.

By: Jessica Palarca

Jessica Palarca is an attorney in Reddy Neumann Brown PC’s PERM Labor Certification Department where she assists clients in the beginning stages of the green card process.
Jessica earned her J.D. from the University of Houston Law Center in 2009 and was admitted into the Texas bar the same year.  As the child of two immigrant parents, Jessica found her passion for immigration law early in her career.  With over a decade of experience in both the private and non-profit sectors, she brings a different perspective to each case she handles.  Through the years, Jessica has learned that to achieve the best possible results for each individual served, one must keep things simple and provide personalized attention and care to each case.