USCIS recently announced that it may excuse late H-1B filings if the delay was caused by the ongoing federal government shutdown. Since the Department of Labor (DOL) is not processing Labor Condition Applications (LCAs), many employers cannot file H-1B petitions right now. On the surface, the USCIS message sounds comforting — but in reality, depending on this “extraordinary circumstance” exception can be dangerous for H-1B workers.

Why This Is Not as Safe as It Sounds

When USCIS says it “may excuse” late filings, that word may is the key. It is not a guarantee. To qualify, the employer or worker must prove that the delay was directly caused by the shutdown — and that the filing was submitted as soon as possible after the government reopened.

To even ask for this exception, you must tell USCIS that your filing was late and explain why. In other words, you are admitting that you fell out of valid H-1B status. That admission becomes part of your permanent immigration record. If USCIS later decides that your evidence was not strong enough, you have already confessed to being out of status — and that can trigger serious problems with Immigration and Customs Enforcement (ICE).

ICE Is Taking Action on Such Cases

Over the past several months, we have seen a growing number of cases where H-1B holders who tried to rely on nunc pro tunc (retroactive) filings — or claimed “extraordinary circumstances” — were later issued Notices to Appear (NTAs) before an immigration judge. Once ICE issues an NTA, the person is officially placed in removal proceedings.

Even if USCIS accepts your filing fee, it does not mean you are “in status.” Acceptance only means your petition will be reviewed. If the case is eventually denied, you will have already been considered out of status for that entire period. That can also trigger the three-year or ten-year entry ban once you leave the United States.

What You Should Do Instead

If your employer cannot file the H-1B because of the shutdown, do not wait and hope for USCIS sympathy. You have safer options:

• File a Change of Status to B-2 visitor status before your 60-day grace period ends. This keeps you lawfully in the U.S. until your next steps are decided.

   

• Prepare to travel outside the U.S. and return later when the system reopens and the LCA can be filed.

   

Both options are far safer than gambling on USCIS discretion.

Conclusion: Protect Your Status, Don’t Gamble With It

The government shutdown is beyond your control, but how you handle your immigration status is not. Admitting that your H-1B filing was late is the same as admitting that you were out of status — and ICE can act on that.

Until the DOL reopens, preserve your lawful status by filing a B-2 or making travel arrangements. Do not rely on “extraordinary circumstance” promises. Once you fall out of status, there is no guaranteed way back — and no shutdown is worth losing your future in the U.S.

By: Rahul Reddy

Rahul Reddy is the founding partner of Reddy Neumann Brown PC. He founded our firm in 1997 and has over 28 years of experience practicing employment-based immigration. Rahul‘s vast knowledge of the complex immigration system makes him an invaluable resource and an expert in the field. His personal experience with the immigration system has made him empathetic to each of his clients’ cases and empowered him to help others achieve the American Dream.

Rahul‘s dedication to serving the immigrant community is evident, from his daily free conference calls to his weekly immigration Q&As on Facebook and YouTube Live. He is an active member of the immigrant community and one of the founders of ITServe Alliance. He has been a member of American Immigration Lawyers Association since 1995.