T&R Immigration Newsletter - October 2, 2025

Immigration Newsletter

October 2025

In this month's newsletter, T&R provides updates and information about (1) the government shutdown; (2) the proposed rule for H-1B weighted lottery; and (3) how the DOL project firewall will increase H-1B audits and investigations.

WHAT HAPPENS TO IMMIGRATION WHEN THE GOVERNMENT SHUTS DOWN?

As posted on T&R social media last week, here is a rundown of what happens to immigration petitions and applications during a government shutdown:

What a U.S. Government Shutdown Would Mean for Immigration

For immigration, the impact depends on the agency:

🔹USCIS: USCIS is largely fee-funded, so most applications should continue, but E-Verify would be suspended. Applicants for citizenship or adjustment of status should see USCIS cases continue, though programs dependent on appropriations could pause.

🔹DOL: The Department of Labor would halt immigration functions, including LCAs, PERM, and prevailing wage requests, creating bottlenecks for employment-based cases.

🔹DOS: The State Department can operate in the short term, but visa interviews abroad may face delays if funding lapses drag on. If you have a visa interview abroad, watch closely for consular-post updates, as delays may arise in a prolonged shutdown.

🔹Immigration courts: They will likely continue detained hearings but reschedule non-detained hearings for later dates.

🔹CBP/ICE: CBP and ICE will continue to operate as essential enforcement, but travelers may face longer lines or limited services. However, travelers at the border or airports can expect longer processing times.

Employers filing H-1B petitions and PERM applications that rely on actions by DOL, should expect delays due to the need to obtain certified LCAs, PERM and prevailing wage requests during a government shutdown. During past shutdowns, E-Verify was offline, but employers were still required to complete the Form I-9 on time, then run cases in E-Verify once the system was back online.

PROPOSED RULE FOR H-1B WEIGHTED LOTTERY

Recently, the Department of Homeland Security (DHS) unveiled a proposed rule, titled Weighted Selection Process for Registrants and Petitioners Seeking to File Cap-Subject H-1B Petitions, which would overhaul the current random lottery selection process. Under the proposal, registrations would be assigned “weights” based on the wage level offered to the beneficiary: those at the highest wage tier would receive more “entries” into the selection pool, thereby improving their statistical chances of selection.

The rule correlates higher skills with higher pay and would tie selection odds to the Department of Labor’s prevailing wage levels (Levels I through IV). A candidate offered a Level 4 wage would be entered four times into the lottery, Level 3 three times, Level 2 twice, and Level 1 once. Employers would have to report the applicable occupational code, wage level, and work location at the registration stage, and later support that claim in the H-1B petition. USCIS may deny or revoke a cap petition if it finds that the wage level was inflated to have an advantage in the selection process. 

This is a proposed rule, not a final rule. It must still go through the notice-and-comment process, OMB review, and then be published in final form before taking effect. If finalized in time, the change could apply to the FY 2027 H-1B registration (i.e. the March 2026 lottery). However, timing is tight, and judicial challenges may delay or block implementation.

This, coupled with the recent Presidential Proclamation on the $100,000 fee for H-1B petitions, is aimed to severely limit the H-1B petitions filed. Employers who rely on H-1B petitions should submit comments to the proposed rule and sign onto petitions to oppose the $100,000 H-1B fee. If you wish to do either of these, please let T&R know.

DOL PROJECT FIREWALL WILL INCREASE H-1B AUDITS AND INVESTIGATIONS

On September 19, 2025, the U.S. Department of Labor (DOL) announced Project Firewall, a major escalation in H-1B program enforcement aimed at curbing abuse and reinforcing protections for American workers. The initiative signals that the administration views H-1B noncompliance not as occasional oversight, but as a systemic risk meriting heightened scrutiny and consequence.

A defining feature of Project Firewall is the new power granted to the Secretary of Labor to personally certify investigations. Under this mechanism, investigations may be initiated even in the absence of a formal complaint, provided “reasonable cause” exists to believe an employer is in violation. DOL expects to coordinate closely with other federal agencies including the Department of Justice, EEOC, and USCIS to refer cases and share evidence.

Penalties under Project Firewall are steep and include:

The initiative and penalties signal a much more aggressive posture toward audits and site visits, with potentially less tolerance for so-called “minor” technical violations in the Public Access File for a labor condition application.

Project Firewall now requires employers to pay more attention to H-1B audit files and compliance. Employers should revisit all H-1B employment practices — including wage setting, job descriptions, worksite documentation, record retention, and recruitment efforts.