Tag: Immigration

U.S. Immigration & Customs Enforcement (ICE) recently issued updated Form I-9 inspection guidance that fundamentally shifts the risk landscape for U.S. employers. By reclassifying dozens of “technical” mistakes as substantive violations, ICE has effectively eliminated the ability to fix common I-9 errors after an audit begins.

Background

Employers are required to verify the identity and employment eligibility of all individuals hired in the U.S. by completing Form I-9, Employment Eligibility Verification. Employers are required to maintain the original paper form(s) or an electronic version of Form I-9 for all current employees and must also retain copies of forms for former employees for at least three years from the first day of employment or one year from the date employment ends, whichever is later.
ICE holds authority to audit the Form I-9 records of employers at any time. Typically, the agency will issue a Notice of Inspection (NOI) and, once served, employers have three business days to produce I-9 records and supporting documentation.

Following an audit, employers are granted a 10-day “cure period” to fix minor clerical errors (technical or procedural failures) discovered during an ICE audit. Under the new March 2026 guidelines, many of these errors are now deemed substantive and cannot be corrected once a Notice of Inspection (NOI) is served. Fines, which can range from $288–$2,861 per form, may be issued by ICE following the audit inspection.

Critical Reclassifications

The following are now considered substantive violations:

• Missing Core Data: Employee birthdates, hire dates, or signatures in Section 1.
• Omissions in Section 2: Failing to record document titles, numbers, or expiration dates—even if a clear copy of the document is attached to the form.
• Employer Attestation: Missing employer name, title, or business address.
• Remote Verification Missteps: Failure to check the “alternative procedure” box when using remote verification or using remote review without being an active E-Verify participant.
• Supplement B Failures: Failing to provide a rehire date or missing employer signatures on reverifications.
• Spanish Version Usage: Using the Spanish-language Form I-9 for employees outside of Puerto Rico.

What This Means for Employers

• Employers are now strictly liable for errors in the employee section of Form I-9 and having a document with the correct information attached will not cure an error on the form.
• Companies will be subject to greater financial risk due to the increase in fines for what were previously considered minor errors
• Employers may see an increase in I-9 audits and fines for substantive violations and uncorrected technical errors

Proactive Steps for Employers

• Internal Audit: Conduct a privileged internal audit to identify and remediate errors. This not only fixes the forms but also triggers the five-year statute of limitations on those errors.
• Review and Standardize Protocols: Ensure consistent standards when addressing any Form I-9 deficiencies revealed by the audit.
• Verify E-Verify & Remote Workflows: If your company uses remote document examination, ensure you are in full compliance with E-Verify requirements and that the “Alternative Procedure” box is consistently checked.
• Retrain Onboarding Teams: “Good faith” is no longer a shield against these specific omissions. Personnel must be trained on the updated distinction between technical and substantive errors.
• Standardize Corrections: If errors are found, they must be corrected according to USCIS “strike-through” protocols (initialed and dated) to be valid.
• Form Version Control: Make sure that teams are using the correct version of the Form I-9.

Gibney will continue to monitor ICE procedures and provide updates related to Form I-9 compliance. For additional information please contact your designated Gibney representative or email info@gibney.com.

Amy McCoy

The Department of State released the May 2026 Visa Bulletin and USCIS has confirmed that it will not accept employment-based Adjustment of Status applications under the Dates for Filing chart for May. Instead, USCIS will require applicants to rely on the more restrictive Final Action Dates chart. As a result practitioners should review eligibility immediately and aim to file any eligible Adjustment of Status applications by April 29, 2026, where possible, while the Dates for Filing chart may still be used for April filings. Overall the May Visa Bulletin reflects limited movement across most employment-based categories, with continued retrogression and high demand constraining forward progress.

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

USCIS confirmed that it will honor the Final Action Dates chart for purposes of eligibility to file an Adjustment of Status application. The Final Action Dates 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 hold steady at April 1, 2023.

EB-2, Second Preference Category

• EB-2 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) will remain current.
• EB-2 China will maintain a filing cutoff of September 1, 2021.
• EB-2 India will remain at July 15, 2014.

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

• EB-3 Worldwide (including El Salvador, Guatemala and Honduras, and Mexico) will maintain a filing cutoff date of June 1, 2024.
• EB-3 China will remain at June 15, 2021.
• EB-3 India will hold steady at November 15, 2013.
• EB-3 Philippines will remain at August 1, 2023.

Other Workers

• Other Workers (including El Salvador, Guatemala and Honduras, Mexico and Philippines) will advance by three months to February 1, 2022.
• China and India will continue to remain at February 1, 2019 and November 15, 2013 respectively.

EB-5: Fifth Preference Category (Immigrant Investors)

• For the EB-5 Unreserved categories (C5, T5, I5, and R5), China will advance by three weeks to September 22, 2016 and India will hold steady at May 1, 2022. 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?  

The Dept. of State has reiterated in the May 2026 Visa Bulletin, that reduced immigrant visa issuance for certain countries due to administration actions such as Presidential Proclamation 10949 and Presidential Proclamation 10998 has allowed for advancement of priority dates in some categories to allocate FY-2026 visa numbers. However, the Dept. of State cautions that as demand increases or policies change, retrogression or stagnation may occur later in the fiscal year to remain within annual limits.

With USCIS reverting to the Final Action Dates chart, many foreign nationals who were previously eligible to file under the Dates for Filing chart will no longer be eligible to submit Adjustment of Status applications in May.

Accordingly, employers and practitioners should act quickly to file any eligible cases before the end of April 2026, where possible, to take advantage of the more favorable Dates for Filing chart. Missing this window may result in significant delays in green card processing and work authorization benefits tied to pending Adjustment of Status applications.

Given the possibility of further retrogression occurring in the coming months, Employers should continue to proactively evaluate workforce immigration strategies, including maintaining nonimmigrant status and planning for extensions to avoid gaps in employment authorization.

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

Inez Macedonio

Now that the H-1B selection process has been completed, there are several important changes for employers to keep in mind.

Background

On March 31, 2026, the U.S. Citizenship and Immigration Services (USCIS) announced that it has received enough electronic registrations during the initial registration period to reach the fiscal year (FY) 2027 H-1B cap. This includes the advanced degree (master’s cap). H-1B petitions may be filed for selected registrations starting April 1, 2026. A petition filed on behalf of a beneficiary must contain and be supported by the same identifying information and position information that was submitted in the selected registration. This year the annual lottery was replaced with a weighted selection process, in which beneficiaries with the highest wage levels had a greater chance of selection.

Next Steps

USCIS has notified all prospective petitioners with selected registrations that they are eligible to file an H-1B cap-subject petition for the beneficiary named in the selected registration. Registrants’ online accounts will now be updated to display their registration status: submitted; selected; not selected; denied; invalidated; deleted or processing information.

Only petitioners with selected registrations may file H-1B cap-subject petitions for FY 2027 and only for the beneficiary in the applicable selected registration notice. Petitioners must submit evidence of the beneficiary’s valid passport or travel document used at the time of registration to identify the beneficiary.

New This Year: Important Changes to Forms and Filing Fees Employers Need to Know

Employers have between April 1 and June 30 to file the complete H-1B petitions. There are several important changes for employers to know when filing:

• Increased Premium Processing Fee: USCIS increased premium processing fees, effective March 1, 2026. Form I-129 petitions increased from $2,805 to $2,965. The form must include the new fee or the request will be rejected.
• Changes to Form I-129: Beginning April 1, USCIS will only accept the new version of Form I-129, Petition for a Nonimmigrant Worker (published Feb. 27, 2026).. Employers are now required to provide greater details on job requirements, including minimum education required, specific field of study, work experience, and any supervisory responsibilities. This change allows USCIS to compare the job requirements to the information that was submitted during H-1B electronic registration and the wage level provided on the Labor Certification Application (LCA) for consistency.
• $100,000 Fee for Employees Abroad: There is a new $100,000 fee for new H-1B petitions filed on or after September 21, 2025. The fee applies to H-1B beneficiaries outside the U.S. or that requiring consular processing. The fee does not apply to extensions or changes of status. The fee must be paid online through pay.gov with Form I-129, or the petition will be denied. While there were lawsuits filed, the fee was upheld by a U.S. District Court in December 2025. Travel is strongly discouraged for employees after the cap petition has been filed, to avoid triggering the $100,000 fee.

Gibney will continue to monitor the FY 2027 H-1B cap process and provide updates, and will work with employers to file H-1B petitions for selected beneficiaries during the designated filing window. For additional information please contact your designated Gibney representative or email info@gibney.com.

The US Department of State announced it will expand social media and online screening to include additional nonimmigrant visa applicant categories, effective March 30. H-1B applicants and dependents, as well as F, M, and J student and exchange visitor visa applicants are already subject to review. See Gibney’s prior alert on enhanced vetting.

New Visa Categories Added

New visa classifications include:

• A-3: Employees of diplomats and government officials
• C-3 (if a domestic worker): Foreign government officials, families and staff
• G-5: Personal employees of G-1/G-4 visa holders
• H-3: Nonimmigrant Trainee or Special Education Exchange Visitors
• H-4 dependents of H-3, K-1, K-2, K-3, Q, R-1, R-2, S, T and U visa applicants

What this Means for Foreign Nationals and Employers

• All social media account settings must be changed to ‘public’ for mandatory, enhanced screening by consular officers
• Applicants must disclose all social media usernames or handles used within the last 5 years on Form DS-160/DS-260
• Failure to disclose social media accounts or adjust the privacy settings may results in a denial
• Applicants may experience processing delays, increased scrutiny and requests for additional information

Houman Afshar

Amy McCoy

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