Tag: Immigration

The U.S. Department of Labor (DOL) has released a proposed rule that revises how prevailing wages are determined for key employment-based immigration programs. The proposed rule would apply to H-1B, H-1B1, and E-3 nonimmigrant workers through Labor Condition Applications (LCAs) and to EB-2 and EB-3 permanent employment-based visas through the PERM labor certification process.  The rule is set to be published in the Federal Register on March 27, and contemplates a 60-day period for notice and comment.

This proposed reform comes on the heels of other recent regulatory and policy changes, including the weighted lottery selection regulation and the Presidential Proclamation imposing a $100,000 fee on certain H-1B petitions. Together, these measures reflect a broader policy effort to prioritize higher-wage and highly skilled foreign workers while strengthening protections for U.S. workers.

Proposed Prevailing Wage Levels

The proposed rule retains the four-level prevailing wage structure but revises the methodology using Occupational Employment and Wage Statistics (OEWS) data to significantly increase the benchmarks for each level.  DOL now anchors Level I at the 34th percentile and Level IV at the 88th percentile. The intermediate Levels II and III are calculated using a formula provided under the statutory framework.

Wage Level	Current Percentile	Proposed Methodology / Percentile	Description
Level I	17th percentile	34th percentile of OEWS distribution	Entry-level positions
Level II	34th percentile	Level I + 1/3 × (Level IV − Level I) ≈ 52nd percentile	Qualified workers
Level III	50th percentile	Level IV − 1/3 × (Level IV − Level I) ≈ 70th percentile	Experienced workers
Level IV	67th percentile	88th percentile of OEWS distribution, or higher of top OEWS interval wage / arithmetic mean if 88th percentile not computable	Highly experienced or supervisory roles

Under the proposed rule, employers may still continue to rely on acceptable alternative wage surveys for prevailing wage determinations, provided that regulatory criteria are met.

Does the Rule Apply to Existing LCAs and PWDs?

In the PERM context, the proposed rule would apply to applications for Prevailing Wage Determinations (PWDs) pending with the OFLC National Prevailing Wage Center as of the proposed effective date, as well as PWD applications submitted on or after the effective date.

In the non-immigrant context (H-1B, H-1B1 and E-3), LCAs filed on or after the effective date would be subject to the new methodology.

Previously approved prevailing wage determinations, PERM applications, and LCAs would not be affected, avoiding retroactive changes.

Key Takeaways for Employers

• Prevailing wage refers to the minimum wage rate that an employer must pay a foreign worker in a specific occupation and geographic area. If the new rule is finalized, prevailing wages would increase significantly.
• Following the 60-day notice and comment period, the rule may be finalized as soon as the summer of 2026, and become effective as soon as 30 days thereafter.  Legal challenges are possible.
• Employers should expect to review and adjust compensation structures to account for the higher wage floors across all four prevailing wage levels and evaluate long term impacts on talent pipelines.
• H-1B cap petitions, which must be filed by June 30, 2026, will remain unaffected, as LCAs would have been filed prior to the effective date.

Gibney will continue to provide additional updates.  If you have specific questions, please contact your Gibney representative or email info@gibney.com.

This alert is for informational purposes and does not constitute legal advice.

Violeta Petrova

The U.S. Department of State (DOS) published a final rule amending Diversity Immigrant Visa Program (DV Program) requirements for enhanced vetting.

What is the Diversity Visa Lottery Program?

The DV Program provides up to 55,000 immigrant visas to people from countries with low U.S. immigration rates. Under the program, foreign nationals who are selected through a randomized computer drawing are granted the opportunity to apply for U.S. Lawful Permanent Resident (green card) status.

What are the Key Changes?

• Passport Requirement: A valid, unexpired passport must be provided with the initial entry form
• Scan Upload: Applicants must upload a JPEG scan of the passport biographic and signature page
• Spouses and Children: The passport scan applies to the primary petitioner; spouses and children must still provide photographs and identifying information
• Registration Fee: There is a new, non-refundable $1 form entry fee
• Updated Form Language: The term “gender” was replaced with “sex” and “date of birth” has replaced “age” to more accurately reflect information collected during the immigrant visa process

Are there Exemptions?

Limited exemptions include applicants who are stateless, nationals from the government of a Communist-controlled country who are unable to obtain a passport, or the beneficiaries of an individual waiver approved by the Secretary of Homeland Security and Secretary of State. Applicants seeking an exemption must provide evidence for review.

When Will the New Changes Take Effect?

The final rule is effective April 10, 2026. Changes will apply to the 2027 Diversity Visa (DV-2027) Program.

What This Means for Employers and Foreign Nationals

Passport processing times can vary significantly by country. HR teams should work with foreign nationals from eligible countries to secure a valid, unexpired passport as soon as possible to avoid any processing delays or application disqualification.

When Will DV-2027 Registration Open?

DOS delayed the opening of the DV-2027 program due to the new passport requirement and has not yet provided the start date. However, the application period for those selected remains October 1 – September 30, 2027.

Gibney will continue to provide ongoing updates on the DV-2027 Program. For questions, please contact your immigration attorney or email info@gibney.com.

Amy McCoy

U.S. Citizenship and Immigration Services (USCIS) will conduct its annual electronic registration process for the Fiscal Year (FY) 2027 H-1B cap from March 4, 2026 to March 19, 2026.

Employers seeking to register employees in the H-1B cap lottery will need to have an active myUCSIS account, if they do not already have one. We strongly recommend that all employers contact their counsel for assistance, if necessary, in setting up their online accounts. While the account establishment process is relatively simple, employers do need to take care to establish the correct type of account to submit registrations.

As in prior years, employers should start planning for cap registration now by identifying foreign nationals they intend to register for the H-1B cap lottery, and ensuring that they have a properly configured myUSCIS account that it linked to their immigration counsel’s account.

General Overview

• Cap-subject U.S. employers intending to sponsor foreign nationals for H-1B status must first register each intended beneficiary electronically with USCIS during the cap registration period held in March.
• The cap registration fee is $215 for each individual registered. The fee is solely for registration of the intended beneficiary.
• The fee is not refunded if the registration is not selected, and it is not applied to the H-1B petition filing fee if a petition is ultimately filed for a selected beneficiary.
• The number of registrations submitted are expected to exceed the number of H-1B visas available under the annual statutory quota.
• There will be a random selection process once the initial registration period closes on March 19.
• The selection process this year will be on a weighted basis, where individuals with higher salaries will generally have a higher likelihood of selection.
• After USCIS conducts the random selection process, it will notify employers and their counsel of selected beneficiaries. Employers may only sponsor H-1B cap petitions for individuals selected through the registration process; no substitution of beneficiaries is permitted.
• After registration selection, employers will have a 90-day period during which they may file H-1B cap petitions for selected beneficiaries.
• The 90-day H-1B cap petition filing period is expected to start no later than April 1, 2026.
• Petitions must be filed requesting a Change of Status, effective October 1, 2026, or risk being subject to the $100,000 H-1B fee.
• Petitions cannot be filed for individuals outside the United States, or risk being subject to the $100,000 H-1B fee.
• If by the end of the first filing window (which is presumed to be April 1, 2026 through June 30, 2026) USCIS has not received enough H-1B petitions to reach the annual quota, USCIS may conduct a second lottery from the pool of previously unselected registrations. USCIS will then designate subsequent filing periods until all H-1B visas are allocated to reach the annual statutory quota.

Highlights

In completing the registration, employers must identify whether the intended beneficiary qualifies for the H-1B visa pursuant to either the advanced degree cap (reserved for individuals holding a U.S. master’s degree or higher in a field of study related to the offered position) or the standard H-1B cap (reserved for individuals holding a Bachelor’s degree or higher in a field of study related to the offered position).

Employers may register multiple individuals at once, using a single online “batch” submission.

Employers may only submit one registration per intended beneficiary in any fiscal year. If an employer registers an individual more than once in the same fiscal year, all registrations submitted by that employer for that individual will be invalidated.

The employer’s authorized legal representative may prepare and submit cap registrations for the employer.

What Should Employers Do Now?

Employers should work with legal counsel now to identify current or prospective employees who may require an H-1B petition to work in the U.S., and to take appropriate steps to ensure timely online registration of identified candidates.

Potential beneficiaries for H-1B cap registration include, but are not limited to:

• F-1 students completing a qualifying course of study or F-1 students currently working in the U.S. pursuant to Optional Practical Training (OPT) or STEM OPT
• J-1 interns/trainees who are currently working in the U.S. pursuant to a DS-2019 exchange visitor program
• L-1, TN, E-1, E-2, E-3, O-1, and/or other nonimmigrant visa holders who wish to change to H-1B status in the future
• Dependent spouses of current nonimmigrant visa holders who may lack work authorization.

Additional Information

Not All H-1B Petitions are Subject to the Cap
Certain individuals and employers are not subject to the annual H-1B cap or cap registration, including:

• Individuals who currently hold H-1B status and who were previously counted against the cap. In most instances, individuals who were counted against the cap in a previous fiscal year are not again subject to the annual cap. This may include petitions:
  • to extend status for current H-1B visa holders;
  • to amend H-1B status due to changes role or location changes for current H-1B workers;
  • to change H-1B employers; and,
  • for concurrent H-1B employment with an additional employer.
• Cap exempt organizations. H-1B cap petitions filed for employment at institutions of higher education or related/affiliated nonprofit entities, nonprofit research organizations, and governmental research organizations, are cap-exempt. H-1B petitions for employment at these institutions are not subject to an annual quota and may be filed any time throughout the year.

H-1B Categories and Annual Quotas

Cap-subject H-1B petitions generally fall within two categories:

“Standard” petitions. The minimum educational requirement for a standard H-1B petition is a Bachelor’s degree or professionally evaluated experience equivalent. Standard cases are capped at 65,000 visas annually.

“Advanced degree” or “Master’s cap” petitions. The minimum educational requirement for an advanced degree H-1B petition is a Master’s degree or higher, awarded by a U.S. university. USCIS allocates an additional 20,000 H-1B visas for U.S. advanced degree holders each fiscal year.

As a reminder, employers will need to establish a registrant account with USCIS, which will need to be linked to an organizational account maintained by their counsel (presuming they are registering with the assistance of an attorney). Please contact immigration counsel now to ensure you are well-positioned for H-1B cap season.

Gibney will provide additional updates as they are announced. In the interim, additional information is available on the USCIS website here.  If you have questions about H-1B cap or if you require assistance with cap registration, please contact your Gibney representative or email info@gibney.com.

Roderick Potts

On January 28, 2026, a federal court issued a significant decision limiting USCIS’s authority to deny EB-1A Extraordinary Ability immigrant petitions based on its long-standing “final merits determination” framework. Although the decision is binding only on the parties involved, it directly challenges USCIS’s nationwide EB-1A adjudication practices and may serve as persuasive authority in future cases.

Background

In Mukherji v. USCIS, the U.S. District Court for the District of Nebraska ruled that USCIS’s two-step analysis for EB-1A petitions was adopted in violation of the Administrative Procedure Act (APA). The court found that USCIS changed how EB-1A petitions are evaluated without engaging in the required notice-and-comment rulemaking process.

Under the existing framework, USCIS first determines whether a petitioner meets the regulatory criteria (either through a major one-time award or by satisfying at least three of ten listed criteria). USCIS then applies a second layer of review, known as the “final merits determination,” which weighs additional policy-based concepts such as the “totality of the evidence” and “sustained national or international acclaim.”

The court concluded that this second step imposes an extra substantive requirement not found in the statute or regulations and was never properly adopted through formal rulemaking. As a result, the court vacated the denial and ordered approval of the petition.

Implications for Employers and EB-1A Beneficiaries or Self-petitioners

The ruling underscores that EB-1A adjudications must be anchored in the regulatory criteria, rather than additional policy-driven or subjective standards. While USCIS has not yet revised its adjudicatory framework and continues to apply the two-step analysis, the court’s reasoning may influence future adjudications, appeals, and litigation strategies. For both employers and EB-1A self-petitioners, the decision provides stronger grounds to challenge denials that rely primarily on the “final merits determination” rather than the regulatory requirements.  It may also prompt a reassessment of prior denials issued at the second step of the analysis, including consideration of motions, appeals, or refiling strategies. At the same time, the decision does not lower the evidentiary burden for EB-1A petitions: careful case preparation, strong supporting evidence, and clear documentation remain essential to a successful outcome.

This alert is for informational purposes and does not constitute legal advice.

The Department of State released the February 2026 Visa Bulletin and USCIS will continue to accept employment-based Adjustment of Status applications based on the more favorable Dates for Filing chart. For February 2026, all categories will remain unchanged under the Dates for Filing and Final Action Dates charts with a notable exception. The Visa Bulletin indicates modest advancement in the EB-3 Professionals and Skilled Workers category for all countries except India and China, with forward movement by approximately three months under the Dates for Filing chart and five weeks under the Final Action Dates chart.

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) will remain current.
• EB-1 China and India will maintain a filing cutoff date of August 1, 2023.

EB-2, Second Preference Category

• EB-2 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) will hold steady at October 15, 2024.
• EB-2 China will maintain a filing cutoff of January 1, 2022.
• EB-2 India 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 advance by approximately three months to October 1, 2023.
• EB-3 China will maintain a filing cutoff of January 1, 2022.
• EB-3 India 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, 2019 and August 15, 2014, respectively.

EB-5: Fifth Preference Category (Immigrant Investors)

• For the EB-5 Unreserved categories (C5, T5, I5, and R5), India and China will maintain a filing cutoff date of May 1, 2024 and August 22, 2016, respectively. 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?

As noted in the February Visa Bulletin, the Dates for Filing chart will continue to remain the same from last month aside from the EB-3 Professionals and Skilled Workers category for all countries except India and China, which will advance by three months. Advancement is also observed for the same category under the Final Action Dates chart which noted forward movement by five weeks.

Employers should be aware that as early as next month, USCIS may implement the more restrictive Final Action Dates chart, which could limit employee eligibility to file Adjustment of Status applications. Employers should review workforce immigration timelines and visa strategies with a view to proactively preserving work authorization, including evaluating eligible employees for H-1B cap registration, which commences in March. Early coordination is critical to avoid gaps in employment authorization for key employees.

Due to continued high demand for green cards across all employment-based categories, stagnation or only moderate advancement in the visa bulletin may occur in the coming months to ensure efficient visa allocation. As a result, Employers should work closely with immigration counsel to promptly file eligible Adjustment of Status applications, as ongoing backlogs and strong demand are expected to further extend the green card process for many foreign nationals.

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

Inez Macedonio

Beginning January 21, the State Department will suspend the issuance of immigrant visas (consular applications for permanent residence) for nationals of 75 countries* while it reevaluates how it determines whether applicants are inadmissible on public-charge grounds—that is, likely to rely on U.S. government financial assistance in the future. The policy was first announced on social media and later formalized through guidance on the State Department’s website.

Applicants from the affected countries may continue to file applications and attend scheduled interviews during the suspension, but no immigrant visas will be issued. Dual nationals applying with a passport from a non-listed country are exempt.

This policy does not affect nonimmigrant visas or I-485 applications to adjust status to permanent residence while in the United States.

However, many of the listed countries are already subject to full or partial travel bans as detailed in our previous Gibney alerts here:

White House Expands Travel Ban Effective January 1, 2026
Significant U.S. Immigration Changes Announced Following Attack on National Guard Members
New Presidential Proclamation Restricts Entry of Certain Foreign Nationals (Effective Monday, June 9, 2025)

*Afghanistan, Albania, Algeria, Antigua and Barbuda, Armenia, Azerbaijan, Bahamas, Bangladesh, Barbados, Belarus, Belize, Bhutan, Bosnia, Brazil, Burma, Cambodia, Cameroon, Cape Verde, Colombia, Cote d’Ivoire, Cuba, Democratic Republic of the Congo, Dominica, Egypt, Eritrea, Ethiopia, Fiji, Gambia, Georgia, Ghana, Grenada, Guatemala, Guinea, Haiti, Iran, Iraq, Jamaica, Jordan, Kazakhstan, Kosovo, Kuwait, Kyrgyzstan, Laos, Lebanon, Liberia, Libya, Macedonia, Moldova, Mongolia, Montenegro, Morocco, Nepal, Nicaragua, Nigeria, Pakistan, Republic of the Congo, Russia, Rwanda, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Senegal, Sierra Leone, Somalia, South Sudan, Sudan, Syria, Tanzania, Thailand, Togo, Tunisia, Uganda, Uruguay, Uzbekistan and Yemen.

Aisling Ryan

U.S. Citizenship and Immigration Services (USCIS) announced that it will increase premium processing fees for all filings currently eligible for the premium processing service, effective March 1, 2026.

• The Form I-907 premium processing fee for eligible Form I-140 employment-based immigrant petitions and Form I-129 petitions requesting E, H-1B, L, O, P, Q, or TN status will increase from $2,805 to $2,965.
• The Form I-907, Request for Premium Processing fee for Form I-765 applications filed by certain eligible applicants (including OPT and STEM OPT) and Form I-129 petitions requesting H-2B or R-1 status will increase from $1,685 to $1,780.
• The Form I-907 premium processing fee for Form I-539 applications requesting F, J, or M nonimmigrant status will increase from $1,965 to $2,075.

All Form I-907 requests postmarked on or after March 1, 2026 must include the new fee, or the request for premium processing request will be rejected.

Background

The USCIS Stabilization Act authorizes Department of Homeland Security (DHS) to adjust premium processing fees every two years to reflect inflation. DHS has indicated that revenue generated by the fee increase will be used to maintain and improve premium processing services, enhance adjudication processes, address processing backlogs, and support USCIS adjudication and naturalization services.

Please contact your Gibney representative for additional information or email info@gibney.com.

This update is provided for informational purposes only and does not constitute legal advice.

Aisling Ryan