Category: Alerts

On November 19, 2025, the Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Services (USCIS) published a Notice of Proposed Rulemaking (“NPRM”) that would rescind the 2022 Public Charge Ground of Inadmissibility Final Rule and replace it with a significantly broader and more discretionary framework. The public comment period closes on December 19, 2025, and the rule may be finalized as soon as 30 days thereafter, making early 2026 the earliest potential effective date.

If finalized, the proposed rule would make public charge determinations more stringent, more subjective, and less predictable for foreign national employees applying for visas or adjustment of status.

Background

Under the Immigration and Nationality Act (INA), a foreign national is inadmissible if they are likely at any time to become a public charge. The 2022 Final Rule requires officers to assess public charge risk using five statutory factors:

• Age;
• Health;
• Family status;
• Assets, resources, and financial status; and
• Education and skills.

Additionally, current regulations require consideration of:

• Affidavit of support (Form I-864), where required, and
• Current or past receipt of certain public benefits.

Key Changes Proposed in the NPRM

1. Removal of the “Primarily Dependent” Standard
   DHS proposes to eliminate the regulatory definition from the 2022 Final Rule that limited public charge inadmissibility to individuals “primarily dependent” on cash assistance or long-term institutionalization.  Instead, DHS would allow officers to assess dependence on any public resources to meet needs, under a more flexible “totality of circumstances” framework.
2. Removal of Regulatory Limitations on Public Benefit Types Considered
   The NPRM would remove the limitation in the 2022 rule that only certain benefits, namely public cash assistance for income maintenance or long-term institutionalization, count for public charge purposes.  Under the proposed rule, DHS would no longer restrict consideration to those categories, meaning a broader range of means-tested benefits could be weighed.  This expands the types of public benefits that could negatively influence public charge determinations.
3. Expanded Fact Finding Discretion
   Under the proposed rule, DHS officers could consider any factor or information they deem relevant, extending their discretion well beyond the five statutory factors. By removing restrictive limits on benefit types and definitions, DHS intends to make public charge determinations that more fully reflect an individual’s ability to rely on personal resources, family, sponsors, or private support.

However, this broader discretion also introduces greater subjectivity into the decision-making process. Applicants may face less predictable outcomes, increased documentation requirements, and less transparent adjudications, as officers can weigh a wide range of circumstances on a case-by-case basis.

Implications for Employers and Foreign National Employees

While many foreign national employees, particularly in employer-sponsored categories, may not face substantive changes, the proposed rule is likely to increase procedural and evidentiary burdens. Applicants may encounter more Requests for Evidence from USCIS, expanded questioning during consular interviews, and a need to submit additional documentation regarding financial resources, employment history, assets, and dependents’ benefit use.

Gibney will continue to monitor developments and provide updates as additional information becomes available.

The Department of Labor (DOL), Office of the Foreign Labor Certification (OFLC), has resumed processing of applications for both temporary and permanent employment programs despite the continued government shutdown.

The Foreign Labor Application Gateway (FLAG) system is now fully operational after activities were suspended due to the shutdown. This includes the resumption of processing of:

• Form ETA-9035, Labor Condition Applications (LCAs) required for non-immigrant visas, including H-1B, H-1B1 and E-3 filings.
• Form ETA 9089, Program Electronic Review Management (PERM) Labor Certifications for employment-based green cards.
• Form ETA-9141, Prevailing Wage Determinations (PWDs) required for the PERM process.
• Temporary Labor Certification under the H-2A and H-2B programs.

What this Means for Employers

Employers may now prepare and submit new applications for all of the above programs through the FLAG system. OFLC has also resumed processing of applications that were pending at the time of system suspension due to the shutdown. Employers should anticipate longer processing and response times as the DOL works through a backlog created by the shutdown and an expected surge in new filings.

The DOL has not yet issued guidance on how it will handle PERM applications where the recruitment period expired between October 1 and October 31 while the FLAG system was inaccessible. We expect further guidance to be released in the near future.

What Should Employers Expect? 

While the FLAG system is fully operational, Employers are encouraged to promptly submit applications for time-sensitive H-1B, H-1B1, E-3, or PERM filings as it remains unclear if a continued prolonged shutdown could possibly trigger another system suspension. Employers should expect extended processing times and slower agency responses due to the accumulated backlog caused by the shutdown. While the DOL has not announced plans for PERM Labor Certifications that could not be timely filed between October 1 and October 31, it is likely that the agency will provide Employers with a grace period in which they may accept PERM applications with expired recruitment as they have done with prior government shutdowns. Gibney will provide further updates as additional information becomes available.

For additional information, please contact your designated Gibney representative or email info@gibney.com.

The Department of State released the November 2025 Visa Bulletin and USCIS will accept continue to accept employment-based Adjustment of Status applications based on the more advanced Dates for Filing chart. All categories will continue to hold steady and remain unchanged under both the Final Action Dates and Dates for Filing charts for November 2025. The November Visa Bulletin indicates that details for the 2027 Diversity Visa Program will be forthcoming.

EMPLOYMENT-BASED (EB) PRIORITY DATE SUMMARY FOR DATES FOR FILING

USCIS confirmed that it will honor the Dates for Filing chart for purposes of eligibility to file an Adjustment of Status application. The Dates for Filing  are as follows:

EB-1, First Preference Category

• EB-1 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) remains current.
• EB-1 China will maintain a filing cutoff date of May 15, 2023.
• EB-1 India will remain at April 15, 2023.

EB-2, Second Preference Category

• EB-2 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) will hold steady at July 15, 2024.
• China: Dates for Filing will maintain a filing cutoff of December 1, 2021.
• India:  Dates for Filing will remain at December 1, 2013.

EB-3, Third Preference Category (Professional and Skilled Workers)

• EB-3 Worldwide (including El Salvador, Guatemala and Honduras, Mexico and Philippines) will remain unchanged at July 1, 2023.
• China: Dates for Filing will maintain a filing cutoff of January 1, 2022.
• India: Dates for Filing will hold steady at August 15, 2014.

Other Workers

• Other Workers (including El Salvador, Guatemala and Honduras, Mexico and Philippines) will maintain a filing cutoff date of December 1, 2021.
• China and India will continue to remain at October 1, 2018 and August 15, 2014, respectively.

EB-5: Fifth Preference Category (Immigrant Investors)

• For the EB-5 Unreserved categories (C5, T5, I5, and R5), India will hold steady at April 1, 2022 and China will maintain a filing cutoff date of July 1, 2016. All other countries will remain current.
• The EB-5 “Set-Aside” categories (Rural, High Unemployment, and Infrastructure) will remain current.

Individuals with a priority date that is before the published cut-off date may file an Adjustment of Status application based on the dates outlined above.

WHAT SHOULD EMPLOYERS EXPECT?  

In the November Visa Bulletin, the Dept. of State notes that entrants registered for the 2026 Diversity Visa Program were selected at random and notified. Selectees of the 2026 Diversity Visa Program should act on their immigrant visa applications quickly as applicants must receive visas or status by September 30, 2026 in order to derive a benefit from the 2026 Diversity Visa registration. Further, the Dept. of State notes that the dates for the 2027 Diversity Visa Program will be widely publicized in the coming months.

While USCIS will continue to honor the Dates for Filing chart for November, it is important to note that these applications cannot be approved until a visa number becomes available pursuant to the Final Action Dates chart. The lack of forward movement may serve as a means in which the Dept. of State can allocate more visas and clear backlogs before potential advancement later in the fiscal year. Alternatively, if increased demand in applicant filings and visa usage across all employment-based categories persists, this may result in USCIS honoring the more modest Final Action Dates chart in the upcoming months.

With continued increased demand across all eligible employment-based categories and extensive processing delays associated with the PERM process, Employers may wish to consider commencing the green card process earlier for foreign national employees. Employers are also advised to submit Adjustment of Status applications for eligible applicants in November as it is uncertain how long the Dates for Filing chart may honored this fiscal year.

For additional information, please contact your designated Gibney representative or email info@gibney.com.

On October 29, 2025 the Department Homeland Security (DHS) announced an interim final rule to end the practice of automatically extending employment authorization documents (EAD) for certain employment authorization categories during the renewal process. The interim final rule is effective October 30, 2025.

Prior to this announcement, EAD applicants in certain eligibility categories received an automatic extension of their EAD card for up to 540 days after the timely filing of a renewal application.  On or after October 30, 2025, applicants who file to renew their EAD, will no longer receive an automatic extension of the EAD while the case is pending. There are limited exceptions to this rule, including extensions provided by law or through a Federal Register notice for TPS-related employment documentation.

WHAT EMPLOYERS NEED TO KNOW

The interim final rule does not affect EADs automatically extended before October 30, 2025.  Any EAD application filed prior to the effective date will still be eligible for automatic extension.  Going forward, it is imperative that applicants seek a timely renewal of their EAD by properly filing a renewal application up to 180 days before their EAD expires.  Employers should be prepared for possible gaps in work authorization for employees who are authorized for employment pursuant to an EAD.

For additional information, please contact your designated Gibney representative or email info@gibney.com.

On September 19, 2025, the President issued the Proclamation Restriction on Entry of Certain Nonimmigrant Workers which imposes a new $100,000 payment requirement for certain H-1B petitions filed on or after September 21, 2025.  The United States Citizenship and Immigration Service (USCIS) recently issued guidance to further explain which H-1B petitions would be subject to the requirement.  Specifically, we now understand that the fee applies primarily to new H-1B petitions for workers outside the United States who do not currently hold valid H-1B visas, as well as petitions requesting consular processing or port-of-entry notification.

Who Is Subject to the Payment

• New H-1B petitions filed on or after September 21, 2025, for beneficiaries outside the United States who do not have a valid H-1B visa
• Petitions requesting consular processing, port of entry notification, or pre-flight inspection; and
• Petitions requesting a change of status, amendment, or extension if USCIS later determines the beneficiary was not eligible for such a request (e.g., not in valid status or departed the U.S. before adjudication)

Who Is Exempt from the Payment

The payment does not apply to:

• Petitions filed before September 21, 2025
• Individuals holding valid H-1B visas or beneficiaries of previously approved petitions
• Petitions filed inside the United States requesting an amendment, change of status, or extension that USCIS grants or
• H-1B workers who travel abroad and reenter the United States on a valid H-1B visa based on an approved petition

Exceptions

The Secretary of Homeland Security may grant a narrow exception where:

• The worker’s presence is determined to be in the national interest
• No qualified U.S. worker is available for the position
• The worker poses no threat to U.S. security or welfare and
• The payment requirement would significantly undermine U.S. interests

What This Means for Employers

• Employers should review all upcoming H-1B filings and plan accordingly to comply with the new rule.
• Payment must be made prior to filing a petition with USCIS.
• Petitioners must submit proof that the payment has been scheduled from pay.gov or evidence of an exception from the $100,000 payment.
• Petitions filed without proof of payment through (or proof of exemption) will be denied by USCIS.
• Limited national-interest exceptions may be requested from DHS at H1BExceptions@hq.dhs.gov.

For more information, please contact your Gibney attorney or email info@gibney.com.

As of October 1, 2025 at 12:00AM EST, the United States Government has shut down. Congressional Democrats have stated that they will withhold support for any spending bill that does not extend existing health insurance subsidies that are set to expire at the end of the year. In the past, government agencies have furloughed employees during a government shutdown, but the White House’s Office of Management and Budget has warned that federal agencies should prepare for mass firings if a shutdown occurs. Mass firings could potentially lead to disruptions in service of many agencies as they struggle with a reduced workforce. The last time the government shutdown was in December 2018 and it lasted for a period of 35 days.  It is unclear as of this time how long this shutdown will last.

Below is a brief overview of the potential immigration impact based on how government agencies operated during prior shut downs.

US. DEPARTMENT OF LABOR (DOL)

DOL will cease accepting or processing applications for Labor Condition Applications (LCAs) needed for H-1B petitions and E-3 applications, prevailing wage applications, and PERM labor certification applications.  DOL may issue guidance providing flexibility to employers who are unable to file PERM labor certification applications with expiring recruitment due to the shutdown.

U.S. CITIZENSHIP AND IMMIGRATION SERVICES (USCIS)

Because USCIS application and petition adjudications are primarily funded by user application fees, USCIS is expected to continue operations without great disruption, though processing times may slow. However, the filing of H-1B petitions and E-3 applications will be impacted, as a DOL-issued LCA is required for the filing (see above).  In the past, USCIS accepted late filings if failure to timely file an H-1B or E-3 extension was due to the government shutdown.

USCIS E-Verify service is appropriations-funded and will be suspended. If the government shuts down, employers will not be able to enroll in E-Verify or to access their E-Verify accounts to verify the employment eligibility of new hires and resolve tentative nonconfirmations (TNCs). E-Verify customer service, online webinars and training sessions, and the Self-Check program will also be unavailable during the shutdown. Employers must still comply with their Form I-9 obligations. In prior years employers were allowed to continue using the new alternate review process for remote I-9 document verification if E-Verify is temporarily unavailable due to a government shutdown. It is expected that this will continue to be the case, as the agency has not said otherwise.

U.S. CUSTOMS AND BORDER PROTECTION (CBP)

CBP personnel, responsible for inspection and law enforcement at U.S. ports of entry, are considered “essential personnel” and are expected to work without pay during a shutdown. U.S. borders and Preflight Inspections (PFI) areas will remain open. However, there may be staffing adjustments that could result in increased wait times to clear inspection and secure admission to the U.S. Additionally, adjudication of petitions by CBP officers at the border and PFI areas, such as TN applications and L-1 petitions for Canadian citizens, may be impacted.

U.S. DEPARTMENT OF STATE (DOS)

Visa and passport services are fee-funded and should continue as long as there are sufficient fees to support operations. However, passport offices housed in government buildings otherwise closed during a shutdown may become unavailable to the public. U.S. Embassies and Consulates remain open and will continue to process visa applications as long as funding remains in place. Visa application processing times may be delayed due to staffing adjustments or slowdowns at other federal agencies responsible for processing the security clearances required for visa issuance. A prolonged shutdown could ultimately exhaust DOS appropriations and result in the suspension of visa processing functions for all but emergency cases.

What Employers Need to Know

For talent acquisition professionals, it is important to note that all H-1B, H-1B1, and E-3 transfers where an LCA has not already been procured will need to be suspended until the government reopens and services from the DOL resume.  At this time, we suggest the following:

• For any individuals who have not yet been given offers, please consider that any offers you do ultimately decide to issue to a job applicant who requires an H-1B, H-1B1 or E3 visa may be subject to delay.  Should you be willing to accept an unknown delay in visa processing at this time, you may wish to consider making the offer contingent on starting by a certain date in case the delay ultimately becomes unacceptable to the business.  Please consult internally in your team and with the relevant business manager to determine whether you will proceed to offer.  A Gibney professional will remain available to discuss this with you and your team, as needed.
• For any individuals who have accepted an offer and who require an H-1B, H-1B1 or E3 visa, and where an LCA has not yet been procured, the start date will be delayed.  The delay should be communicated to the individual and immigration counsel will provide updates on such impacted cases.

The situation posed by the federal government shutdown remains fluid. As the shutdown persists, the impact on immigration related services may change. Gibney will be closely monitoring the situation and will provide updates. If you have any questions about this alert, please contact your Gibney representative or email info@gibney.com.

The general information provided herein is not intended to serve as a source of legal advice for any purpose. Please contact your designated Gibney representative or immigration counsel for specific legal advice.

On September 24, 2025, the U.S. Department of Homeland Security (DHS) issued a notice of proposed rulemaking (“NPRM”) to amend its H-1B regulations. The proposal also includes provisions that would change the H-1B cap registration and selection process.

If implemented, the NPRM would revise the H-1B Cap selection process to add extra weight to applicants who are paid higher salaries relative to their respective fields. As a result, those individuals would be more likely to be selected.

BACKGROUND

When filing an H-1B petition, employers must first obtain a certified Labor Condition Application (“LCA”) from the Department of Labor (“DOL”). A required step in this application process is for employers to confirm that they are paying at or above the prevailing wage for the position in the area of intended employment. Employers select, from a DOL statistical database, the appropriate occupational classification for the offered position. The salaries for these positions are divided into 4 levels, from “entry level,” at Level I, to “fully competent workers,” at Level IV. The prevailing wage amount increases commensurate with the level.

While this this determination (as well as the LCA certification) is a requirement for the filing of an H-1B petition, it has not been required, nor has it been a consideration for selection, for H-1B cap registration.

The Details

In advancing the rule, DHS proposes to “implement a weighted selection process that would generally favor the allocation of H–1B visas to higher skilled and higher paid aliens, while maintaining the opportunity for employers to secure H–1B workers at all wage levels.” To do so, the rule will require that employers entering beneficiaries into the H-1B cap lottery will need to submit, not only biographical details on the beneficiaries (which has been the case in previous lotteries), but also details on the offered position, including the salary, the geographical area of intended employment, the occupational classification, and the wage level.

After registration has closed, USCIS will weight the entries by manipulating the number of times a given beneficiary is added to the pool. According to the NPRM, the registrations will be weighted in the following manner:

• Positions with Level I wages will be entered into the lottery 1 time;
• Positions with Level II wages will be entered into the lottery 2 times;
• Positions with Level III wages will be entered into the lottery 3 times; and,
• Positions with Level IV wages will be entered into the lottery 4 times.

The intended result of this change is that beneficiaries who are offered higher salaries relative to the area of employment, would see a far higher chance of being selected in the lottery. Those beneficiaries who are offered salaries that meet the lower levels will still have a chance at being selected, but would find themselves at a statistical disadvantage.

What’s Next?

The public may submit comments to the rule through October 24, 2025. Once DHS reviews and considers all comments, it intends to publish a final rule. While there is no anticipated publication date for the rule at this time, the rule would be issued no sooner than 60 days from the issuance of the NPRM, or November 24, 2025.

Gibney will closely monitor advancement of this rule and will provide updates as they become available. For questions about the rule and the notice and comment period, please contact your designated Gibney representative.

A Presidential Proclamation labeled “Restrictions on Entry of Certain Nonimmigrant Workers” has been issued by President Trump on September 19, 2025, imposing restrictions on the H-1B visa program that go into effect Sunday, September 21, 2025 at 12:01 a.m. eastern daylight time (Saturday, September 20, 2025 at 9:01 p.m. pacific standard time).

The Proclamation imposes a $100,000 annual fee for each H-1B visa petition and places restrictions on entry into the U.S. with very limited exceptions unless this fee is paid.  No instructions have been given on how the fee would be paid, or how an exception could be obtained.  It remains unclear, as of the time of this alert, whether the travel restriction will be imposed solely on “prospective” H-1B employees who have no current employment ties, or also to H-1B visa holders returning to resume employment in the U.S.

Key Points

• Effective Date: Sunday, September 21, 2025, at 12:01 a.m. ET
• Expiration: One year from the effective date (unless extended)
• Restrictions on Entry:
  • The Proclamation restricts entry of individuals who seek to enter the U.S. in H-1B status on or after the effective date of September 21, at 12:01 AM ET, unless accompanied by proof of $100,000 fee payment.
  • Some language in the Proclamation suggests that the restriction on entry will apply solely to new, prospective H-1B petitions on behalf of beneficiaries who are outside the United States during the effective period of the Proclamation. This is consistent with the informal confirmations Gibney has received as of late morning, Saturday, September 20, 2025, from several Customs and Border Protection officers, who expect that the ban will apply to new (prospective) H-1B petitions.  We caution that these informal confirmations may not be relied upon as official guidance.
  • Potentially impacted H-1B visa holders must await further clarity on whether the Proclamation may also apply to existing H-1B workers who happen to be currently travelling outside the United States, or to those who subsequently depart and try to reenter the U.S. in H-1B status during the effective period of the Proclamation.
• Restrictions on Petition Adjudications:
  • USCIS is directed not to adjudicate H-1B petitions filed on behalf of individuals who are abroad on or after the effective date, unless accompanied by proof of $100,000 fee payment.
  • Extensions, change of employer, change of status, and amended petitions on behalf of individuals who are already in the U.S. in valid status appear to be exempt.
• National interest exceptions may be available at individual, company, or industry level, subject to DHS approval.
• Additional Government Action:
  • By the end of April 2026 (30 days after the next H-1B cap lottery), key federal agencies will jointly recommend whether the restriction on entry should be extended.
  • The Secretary of State is to issue guidance aimed at preventing B visa misuse (presumably to prevent individuals from entering in B status and filing a change of status petition to circumvent the fee).
  • The Department of Labor is instructed to revise prevailing wage rules and prioritize high-skilled, high-paid foreign nationals.

Next steps

• While it may not be feasible for those outside the U.S. to return before the Proclamation takes effect, employers should consider issuing a travel advisory to H-1B employees (as well as those in other visa statuses who hold an approved H-1B cap petition) to caution against international travel until further details emerge.
• Upon learning of employees who are outside the U.S. and expected to return soon, each case must be evaluated to determine the most prudent course of action, as additional information becomes available.

This alert is for informational purposes only and should not be construed as legal advice.  Please contact your designated Gibney attorney for further guidance.

The Department of State has confirmed that the annual limit for the EB-1, EB-2 and EB-3 immigrant visa categories has been reached for FY2025. Accordingly, no immigrant visas or green cards will be issued for the remainder of the fiscal year, which ends on September 30, 2025. However, in prior years USCIS has continued to accept EB-1, EB-2 and EB-3 Adjustment of Status applications which are listed as current in the visa bulletin for September. Although Adjustment of Status filings based on the EB-1, EB-2 or EB-3 categories may continue to be accepted by USCIS, these filings cannot be approved until a visa number becomes available.

WHAT SHOULD EMPLOYERS AND FOREIGN NATIONALS EXPECT?  

In prior years, USCIS has continued to accept Adjustment of Status applications for filings that are current in the Visa Bulletin irrespective of the announcement confirming the usage of all available immigrant visas. However, given the current immigration landscape, the more conversative approach may be to wait until the commencement of the new fiscal year to proceed with eligible Adjustment of Status filings. However, case specific facts and deadlines pertaining to individual cases, in conjunction with an analysis of the October Visa Bulletin may warrant proceeding with the Adjustment of Status application in September. In considering filing an Adjustment of Status application for one of the employment-based categories noted above in September, close collaboration and guidance with Gibney legal counsel is recommended.

For pending Adjustment of Status filings already submitted, if the underlying category is unavailable, the application will not be decided on until a visa number becomes available. Foreign nationals are also advised to attend any scheduled Adjustment of Status interviews though the interview may ultimately be rescheduled and cannot result in an approval until visa numbers are available. The new fiscal year commences on October 1, at which time, the green card allocation will reset for all employment-based categories.

For additional information, please contact your designated Gibney representative or email info@gibney.com.

U.S. Consulates abroad have begun directing certain visa applicants to adjust privacy settings on all social media profiles to “public” in steps taken to comply with Department of State’s earlier directive that F-1, M and J visa eligibility will be subject to enhanced vetting and review of social media.

This comes at a time where we see continued directives and adjustments in U.S. immigration policy domestically to further define and direct the scope and discretion of U.S. Citizenship and Immigration Services (USCIS) to review certain immigration benefits.  USCIS recently updated its Policy Manual to reinforce discretionary authority with regard to determinations on eligibility for certain immigration benefits with further guidelines to USCIS officers on how to apply discretion in their review of specific case types. These updates have been outlined in Policy Alert Clarifying Discretionary Factors in Certain Immigration Benefit Requests” (PA-2025-16) issued on August 19, 2025.

USCIS has always held the authority to make discretionary determinations with regard to eligibility for immigration benefits, such as applications for U.S. permanent residence (Green Card), applications for extension and change of nonimmigrant (temporary) visa status, among others, based on factors outside of the threshold eligibility requirements. However, the updates to the Policy Manual, provide further clarification and specific direction with regard to how this discretionary authority should be exercised:

Review of conduct that could be considered Anti-American and Antisemitic

Immigrations officers are directed to consider an applicant’s endorsement, promotion, or support of anti-American or terrorist organizations and ideologies, including antisemitic terrorism and ideologies, as an “overwhelmingly negative factor” in their discretionary analysis.  Specifically, officers are directed to deny benefits through the application of their discretionary authority to such applicants.

The review of engagement or association with terrorist organizations has always been a part of the review of certain applications.  The new updates to the Policy Manual, however, appear to expand review beyond direct participation or affiliation with a terrorist group to any activity that could be deemed as endorsing, promoting, supporting, or otherwise espousing anti-American or antisemitic ideologies. Without further clarification on what constitutes these ideologies, individual USCIS officers are granted the authority to make subjective determinations when applying this discretionary authority.

Review of Prior Admission to the U.S.

Additionally, immigration officers are directed to particularly review whether an applicant’s previous admissions or paroles into the U.S. were “made in accordance with all applicable laws, regulations, and policies in effect at the time.”  The specific update to the USCIS Policy Manual indicates that an applicant’s knowledge of false or fraudulent information in the underlying application that is used as the basis for entry to the U.S. would be a negative discretionary factor that could lead to denial of the application.

Exercise of Discretion in Nonimmigrant Visa Petitions

In applications to extend or change nonimmigrant visa status USCIS also holds discretionary authority to review factors outside of the standard eligibility requirements for the requested visa category. The existing discretionary authority is reinforced and officers are referred to apply the same standards that are applied in permanent cases, including the newly added consideration of any activity that could be deemed anti-American and antisemitic. These standards are also explicitly stated with regard to reinstatement of F or M nonimmigrant student status and in employment authorization requests.

Other updates

Of note, the updates to the Policy Manual confirm that in connection with employment-based cases, the exercise of discretion should only be applied to petitions requesting a National Interest Waiver. It also clarifies how discretion is applied in the adjudication of certain EB-5 investor petitions, specifically in cases involving threats to national interest, fraud, or criminal misuse.

What Employers Should Know

While USCIS officers have always held discretionary authority in connection with their review of certain petitions and applications, the addition of the broad language regarding activities that could be viewed as anti-American or antisemtic could result in heightened vetting and denials of immigration benefits for otherwise qualified applicants.