Tag: Immigration

As employers prepare for the FY 2027 H-1B cap season and the associated H-1B lottery in March 2026, two distinct developments are expected to shape strategy and outcomes:

• The Department of Homeland Security (DHS) has published a final weighted selection regulation, which allocates additional lottery entries based on wage levels; and
• Ongoing litigation challenging the presidential $100,000 H-1B fee proclamation, which remains in effect for now.

Weighted Selection Process for H-1B Registrations Overview

In follow-up to our prior analysis of the proposed changes to the H 1B cap registration process, DHS has finalized a weighted selection process that will apply beginning with the FY 2027 H-1B cap registration season, although litigation is expected. DHS adopted the final rule without changes.

Under the weighted selection mechanics, beneficiaries will be entered into the selection pool as follows, with the highest wage levels having a higher chance of selection:

• Wage Level IV: 4 entries
• Wage Level III: 3 entries
• Wage Level II: 2 entries
• Wage Level I: 1 entry

In cases where a beneficiary may have multiple bona fide job offers (each with its own associated H-1B cap registration), USCIS will assign the beneficiary with the lowest wage level among all registrations submitted on their behalf for purposes of weighting.

The final rule substantially expands the information burden required at the registration stage, including assessment and submission of:

• Highest Department of Labor (OEWS) wage level that the offered wage equals or exceeds;
• SOC code (Standard Occupational Classification code) for the H-1B position; and
• Area(s) of intended employment used to determine wage level.

Employers must also certify that registrations are submitted in good faith and are not intended to unfairly increase selection odds.

The regulation otherwise retains the beneficiary-centric selection process.  Selections are conducted by unique beneficiary, regardless of how many registrations are submitted for that individual. Each beneficiary is counted only once toward the annual numerical limits, though they may receive multiple weighted entries based on wage level.

Registration Period and Timing

The initial H-1B registration period must last at least 14 calendar days. USCIS must announce the registration start date by March 2, 2026 (at least 30 days in advance of the statutory filing period), and the period must begin by March 18, 2026 (at least 14 days in advance of the statutory filing period). USCIS may extend or reopen the registration period if necessary to reach projected cap numbers.  Unselected registrations remain on reserve and may be selected later if USCIS increases projected needs.

Petition Filing and Evidence Requirements

Pursuant to the final regulation, the information collected at registration (SOC code, OEWS wage level and area of intended employment) will also be collected on the petition.  An H-1B cap petition must be based on a valid, selected registration and must include evidence supporting the wage level selection as of the registration date.

H-1B Presidential Fee Proclamation and Litigation Background and Key Decision

The presidential $100,000 fee for certain new H-1B petitions filed on behalf of beneficiaries outside the U.S. has been upheld for now in Chamber of Commerce v. DHS, Case No. 25-cv-3675 (D.D.C.). The court rejected claims that the fee exceeds presidential authority or constitutes an unlawful tax. The decision is on appeal, but the proclamation remains in effect.

Additional Pending Litigation

• Global Nurse Force v. Trump, 4:25-cv-08454 (N.D. Cal.): Filed October 2025 by a coalition of healthcare staffing firms, unions, educators, religious organizations, and individual visa holders, alleging the fee exceeds statutory authority and constitutes an unauthorized tax. A motion for preliminary injunction and class certification was filed December 18, 2025 and a hearing is scheduled for February 19, 2026.
• State of California v. Noem, 1:25-cv-13829 (D. Mass.): Filed December 12, 2025 by a coalition of 20 states, alleging violations of federal laws and the U.S. Constitution, and harm to employers facing workforce shortages.

Practical Takeaways for Employers

• The weighted selection regulation and the H-1B presidential fee litigation are separate developments, but together they will materially influence H-1B cap season strategy.
• Under the weighted selection regulation, employers should expect greater front-loaded burden at the registration stage, as wage strategy, job structuring, and documentation must be fully assessed and finalized before registration.
• The regulation is expected to negatively impact early-career pipelines, as higher-wage positions will benefit from increased selection odds under the weighted system.
• Conversely, the $100,000 Presidential Proclamation fee may reduce H-1B registrations overall, particularly for beneficiaries requiring visa issuance abroad. Reduced participation may indirectly improve selection odds for remaining registrants, especially for higher-wage positions advantaged by the new weighted selection rule.
• Employers should work with counsel well in advance to finalize job details earlier and prepare for increased registration-stage requirements, and monitor ongoing litigation that may further affect filing volumes and selection dynamics.

Gibney is closely monitoring these developments and will provide additional updates as they are announced. This alert is solely for informational purposes and does not constitute legal advice. If you have questions or require assistance, please contact your Gibney representative or email info@gibney.com.

Author: Violeta Petrova

On December 16, 2025, the White House expanded the existing travel ban to add 7 additional countries to the list of 12 fully banned countries and adding several other countries to the partially restricted list. These developments, along with a recent Policy Memo from the U.S. Citizenship and Immigration Services (USCIS) pausing adjudication of immigration benefits for individuals born in or citizens of the 19 banned countries will have significant implications for employees for US travel and immigration benefits.

Background and Updates

Travel Ban, June 4, 2025

On June 4, 2025, President Trump issued a proclamation suspending entry of foreign nationals from 12 countries and partially limiting entry from an additional 7 countries, citing national security and public safety concerns. That proclamation expressly included several important exemptions including for lawful permanent residents, dual citizens of other countries not on the banned list, and those with valid visas.

USCIS Policy Memo, December 2, 2025

On December 2, 2025, USCIS issued a policy memo that seeks to implement enhanced national security screening measures for certain immigration benefit applications filed by nationals of countries subject to the June 2025 travel ban and subsequent expansions. While the USCIS policy does not itself prohibit filing applications, it pauses processing of pending immigration benefit requests for individuals who were born in or are citizens of the 19 countries subject to the travel ban and directs review of previously approved immigration benefits for nationals of those countries. Importantly, this policy operates independently of the travel ban and does not include the same exceptions.

Expanded Travel Ban, December 16, 2025

On December 16, 2025, the White House issued an expanded proclamation broadening the scope of the June travel restrictions effective January 1, 2026. This adds additional countries to both the full and partial restriction lists, to total 39 countries and expands the categories of nonimmigrant visas subject to limitation for certain nationals. Consular officers are directed to apply heightened vetting and to deny visas where national security or public safety concerns are identified. This proclamation contains similar exceptions to the June travel ban but removes important exceptions for Immediate Relative immigrant visas, adoption related visas and Afghan special immigrant visas. The government will review and assess the list of travel ban countries every 180 days; therefore, further restrictions may be forthcoming.

Key Details of the Travel Bans

Under the June 4, 2025 proclamation, nationals from the following 12 countries faced a full suspension of entry to the United States: Afghanistan; Burma (Myanmar); Chad; Republic of the Congo; Equatorial Guinea; Eritrea; Haiti; Iran; Libya; Somalia; Sudan; and Yemen.

The expanded proclamation of December 16, 2025, adds 7 additional countries to that full-suspension list, subject to the same exceptions in the June Proclamation, including: Burkina Faso, Laos, (previously on partially restricted list): Mali, Niger; Sierra Leone (previously on partially restricted list); South Sudan; and Syria. Palestinian Authority travel document holders are also subject to full restriction.

Partial restrictions now apply to nationals from the following countries who seek to enter the U.S. as immigrants or pursuant to  B-1/B-2, F, M, and J nonimmigrant visas: Angola; Antigua and Barbuda; Benin; Burundi (previously on partially restricted list); Cote d’Ivoire; Cuba (previously on partially restricted list); Dominica; Gabon; The Gambia; Malawi; Mauritania; Nigeria; Senegal; Tanzania; Togo (previously on partially restricted list); Tonga; and Venezuela (previously on partially restricted list); Zambia; and Zimbabwe.

The Proclamation also instructs consular officers to limit the visa validity of non-suspended categories such as H-1B and L-1 for nationals of the partial banned list.

Immigrant visas continue to be suspended for nationals of Turkmenistan unless subject to an exception however nonimmigrant visas may be issued.

Exceptions to the Travel Ban

The travel bans apply only to individuals of the listed countries who are currently outside the U.S. and without a valid visa. As such, individuals who currently hold valid visas are generally not subject to the entry restrictions. Additionally, the proclamations expressly include several important exemptions. The suspension and limitation on entry will not apply to:

• U.S. lawful permanent residents (Green Card holders);
• Dual nationals of a subject country when traveling on a passport issued by a non-subject country (e.g., a dual Canadian–Iranian citizen entering on a Canadian passport);
• Foreign nationals and their dependents traveling on government-related nonimmigrant visas, including A, C, G, and NATO categories;
• Athletes, members of athletic teams (including coaches and support staff), and their dependents traveling to the U.S. for the World Cup, Olympics, or other major sporting events;
• Special Immigrant Visas for U.S. government employees; and
• Immigrant visas for ethnic and religious minorities facing persecution in Iran.

Exceptions to the travel ban may also be granted where travel would advance a critical national interest involving the U.S. Department of Justice, as determined by the Attorney General, or where travel would otherwise serve the U.S. national interest, as determined by the Secretary of State in coordination with the Secretary of Homeland Security. This may now include Immediate Relative Petitions.

Further, the proclamations do not apply to individuals who have been granted asylum, refugees who have already been admitted to the U.S., or individuals granted withholding of removal or protection under the Convention Against Torture (CAT). The proclamations expressly state that they should not be construed to limit the ability of any individual to seek asylum, refugee status, withholding of removal, or CAT protection.

USCIS Policy Pausing Immigration Benefits does not include Travel Ban Exceptions

It is important to note that the USCIS policy memo pausing processing of pending immigration benefit requests for individuals who were born in or are citizens of the 19 designated countries does not include the same exceptions as the travel ban. Notably, it applies to pending and approved immigration benefits for all foreign nationals born in those countries even if they hold citizenship with another country.

Therefore, it may affect individuals who are exempt from the travel ban including dual citizens of other countries not subject to the ban and those already in the U.S. or holding valid visas.

What Employers Need to Know

Together, the travel ban expansion and USCIS Policy Memorandum have significant implications for employers, educational institutions, and organizations with international personnel, including:

• Travel disruptions and visa issuance delays;
• Extended processing times for USCIS filings;
• Increased RFEs, NOIDs, biometrics and case holds for affected nationals;
• Heightened risk of inconsistent adjudications, even for long-standing employees or students; and
• Increased need for heightened workforce planning and compliance.

Employers with employees working pursuant to visas or alternative forms of employment authorization in the U.S. should plan for contingencies, avoid mandating business trips involving international travel for those employees who are citizens of the listed countries, and consult counsel before filing or renewing immigration benefits for affected individuals.

Gibney is closely monitoring these developments and will provide additional updates as they are announced. This alert is solely for informational purposes and does not constitute legal advice. If you have questions or require assistance, please contact your Gibney representative or email info@gibney.com.

Following last week’s announcement that the Dept. of State will expand social media vetting to H-1B and H-4 visa applicants, there have been reports that U.S. consulates are cancelling and rescheduling H-1B and H-4 visa appointments originally scheduled for December 15, 2025 and later. Applicants with appointments at U.S. Consulates in India have reported receiving notifications rescheduling their appointments for dates as far out as March, April, or May of 2026.

Practical Implications for Employers and Foreign National Employees

This development raises potential work-continuity concerns for employers and foreign national employees. Foreign nationals with H-1B and H-4 visa appointments scheduled for December 15, 2025 and later should be prepared for the possibility that their appointment may be cancelled and rescheduled for a later date. Foreign national employees already outside of the U.S. without a valid H-1B or H-4 visa stamp may be unable to return in a timely manner if their visas cannot be issued promptly.

Foreign national employees with upcoming international travel that would require obtaining a new H-1B or H-4 via stamp to return to the U.S. should carefully monitor their visa appointment status through the U.S. embassy or consulate website, as appointments may be subject to cancellation or rescheduling. It is possible that an increasing number of consular posts may cancel and reschedule H-1B and H-4 visa appointments as consular posts implement expanded online presence reviews.

Individuals should carefully assess the risks of departing the U.S. as planned travel approaches. Visa issuance delays or appointment cancellations may occur with limited notice.

Employers should advise foreign nationals in H-1B or H-4 status to contact immigration teams prior to departure from the U.S. in order to review travel plans and understand potential implications for U.S. immigration status and employment if employees are unable to return to the U.S. as scheduled.

Jennifer Davis

Gibney is closely monitoring these developments and will provide additional updates as they are announced. This alert is solely for informational purposes and does not constitute legal advice. If you have questions or require assistance, please contact your Gibney representative or email info@gibney.com.

On December 5, 2025, U.S. Citizenship and Immigration Services (USCIS) announced the establishment of a specialized center to centralize and enhance the screening and vetting of foreign nationals within the U.S. immigration system. This new center is a major development in the administration’s purported efforts to safeguard national security and public safety.

The USCIS Vetting Center

The new USCIS Vetting Center (the “Center”), to be headquartered in Atlanta, Georgia, is designed to screen out individuals who may pose a threat to the U.S., including terrorists, persons with criminal backgrounds, and those who have committed fraud. The creation of the Center is part of a broader series of efforts to implement Executive Order 14161, Protecting the United States from Foreign Terrorists and Other National Security and Public Safety Threats, issued on January 20, 2025.

The Center will centralize security screening leveraging advanced technologies, including AI, to conduct intensive reviews of all applications.  At the outset, the center is tasked with reviewing pending applications and conducting a retroactive review of already-approved applications for foreign nationals, prioritizing applications from presidentially designated “countries of concern”. USCIS has stated that they will utilize the classified and non-classified screening and vetting capabilities from the Department of Homeland Security (DHS), other law enforcement agencies, and the intelligence community in conducting their reviews.

What We Don’t Know

The USCIS announcement leaves many unanswered questions. USCIS has stated the Center will take on its full role “once fully operationalized,” however they have not released a specific date for when that will occur. Also, they have not provided estimates on how much time the new enhanced vetting will add to current processing times for cases that are flagged for review.  USCIS has not publicly released the criteria that it will use to conduct additional review on applications received by individuals coming from “countries of concern”. Additionally, USCIS has not disclosed how they will identify “fraud and security risks.”  Further, if a case is flagged due to error, there does not currently appear to be a process or timeframe for applicants to challenge that finding and/or correct the record.

What Employers Need to Know

Employers should be prepared to factor significant additional time into immigration-related planning for new hires or transfers.  We recommend that all renewal applications be filed as early as possible (typically 6 months prior to the expiration date) to allow additional time for processing, if needed.   Employers should consider utilizing the USCIS Premium Process Service, where available for an adjudication within an established time frame. Employers should also consider developing or enhancing plans for employees who may experience sudden loss or gap in work authorization, such as temporary overseas reassignments and leave-of-absence policies.

Additionally, it will be critical for employers and employees to ensure that employment records, travel documents, and the documentation confirming same are accurate, consistent, and readily available.  Prior to international travel, employees should be advised to alert HR and immigration counsel to identify any risks and to ensure they have the appropriate documentation for travel.

Amy McCoy

The U.S. Department of State has announced that effective December 15, the agency will expand its online presence review requirement to include all H-1B visa applicants and their H-4 dependents. This mandate previously applied only to F-1 and M-1 students and J-1 exchange visitors.

As part of this expanded vetting, all applicants in the following classifications must ensure that their social media profiles are set to “public” during the visa application process:

• H-1B specialty occupation workers
• H-4 dependents
• F-1/M-1 students
• J-1 exchange visitors

The Department stated that this change is intended to facilitate the additional vetting as consular officers review applicants’ publicly accessible online presence.

Practical Implications for Employers and Foreign National Employees

The State Department has emphasized that every visa adjudication is a national security decision, and the expansion of online presence review reflects a continued focus on identifying applicants who may be inadmissible or pose security concerns. With the new requirement that H-1B and H-4 applicants make their social media profiles publicly accessible during the visa process, employers and applicants should anticipate more comprehensive digital vetting.

The Department will use publicly available online information to verify applicants’ identity, intent, and eligibility. Inconsistencies between an applicant’s digital footprint and the information provided in the DS-160 or supporting documents could result in delays or adverse decisions. As a result, applicants should carefully review their online presence for accuracy, professionalism, and alignment with their stated purpose in the United States. Importantly, applicants who have concerns about their digital footprint should consult with immigration counsel prior to departing the United States to make sure they understand risks and prepare appropriately.

This expanded vetting may lengthen visa processing times.  Employers should account for these potential delays in workforce planning and prepare employees for more detailed scrutiny during the consular stage.

Violeta Petrova

In the wake of the shooting of two members of the National Guard in Washington D.C. on November 28, 2025, the Trump Administration has announced a number of significant changes to the processing of certain immigration cases and restrictions on immigration benefits.

Specifically, the Administration has announced the following:

• Immediate Suspension of Asylum Decisions. The Director of United States Citizenship and Immigration Service (USCIS), announced the suspension of all pending asylum decisions until they can ensure that every applicant is “vetted and screened to the maximum degree possible.” The duration of this suspension is currently indefinite, and formal guidance outlining the new vetting protocols has not yet been released.
• Indefinite Halt on Immigration Requests for Afghan Nationals. USCIS has indefinitely stopped the processing of a broad range of applications submitted by or on behalf of Afghan nationals, including, but not limited to, adjustment of status (Green Card) applications, parole requests, naturalization and other immigration benefits. All Afghan nationals have also been barred from entering the U.S.  Visa issuance for Afghan nationals has already been restricted under the Administration’s June 2025 travel ban, so the U.S. Department of State’s additional announcement appears to be aimed at Afghan nationals who may have been eligible for visa issuance under an exception to the travel ban.
• Pause on Adjudications from “Countries of Concern”. An unofficial copy of internal USCIS guidance has been issued implementing a pause on final adjudications for individuals from the 19 countries subject to the travel ban or “countries of concern.” In a Proclamation issued by President Trump in June 2025, the following 19 countries were designated as “countries of concern”: Afghanistan, Burma, Burundi, Chad, Republic of Congo, Cuba, Equatorial Guinea, Eritrea, Haiti, Iran, Laos, Libya, Sierra Leone, Somalia, Sudan, Togo, Turkmenistan, Venezuela, and Yemen. The pause is in effect until USCIS issues guidance on additional vetting of these nationals. The pause applies to approvals and denials of all form types, as well as naturalization oath ceremonies for individuals from the travel ban countries.  Further, newly issued USCIS guidance allows for country-specific factors to be considered as a “significant negative factor” in immigration benefit applications for individuals from these 19 nations.
• Review of Biden-Era Refugee Admissions. The Administration has also indicated that they will review all refugee cases approved during the Biden administration, specifically targeting those who entered the U.S. between January 20, 2021, and February 20, 2025.

WHAT EMPLOYERS NEED TO KNOW

USCIS and the U.S. Department of State have not yet released formal policy guidance following on their pronouncements and internal policy guidance. However, given the immediate and broad nature of these policy changes, individuals and employers with pending or planned cases related to the affected categories and nationalities should be prepared for significant delays in the adjudication of asylum, Green Card, naturalization and other immigration benefit applications.

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

Amy McCoy

Following a 30-day comment period, on November 27, 2025, Department Homeland Security (DHS) regulations were amended to provide that DHS may require all foreign nationals to be photographed when entering or exiting the United States, and may require non-exempt foreign nationals to provide other biometrics.  This final rule significantly expands the government’s authority to use facial comparison technology for identity verification, impacting all foreign nationals traveling to and from the U.S. The rule is effective December 26, 2025.

A COMPREHENSIVE BIOMETRIC ENTRY-EXIT SYSTEM

The final rule permanently establishes full-scale implementation of a Congressionally mandated, post-9/11 biometric security entry-exit system after a decades-long effort of pilot programs and testing.  The stated purposes of this system are to:

• Verify Identity: Confirm that the traveler is the true bearer of the travel documents presented to immigration authorities.
• Combat Fraud: Prevent visa fraud, document fraud, and identity theft.
• Improve Security: Enhance national security by identifying known or suspected terrorists or criminals.
• Identify Overstays: More accurately track departures from the U.S. to identify visa overstays and those present without admission.

The primary method for identity verification is facial comparison technology, which the U.S. Customs and Border Protection (CBP) considers to be the most accurate, efficient, and unobtrusive method. The system compares a live photograph of the traveler against a gallery of facial image templates derived from existing documents, such as passport and visa application photos, or previous border inspection encounters.

The use of facial comparison is expected to make the entry inspection process more efficient. DHS purports that the facial scan can quickly retrieve a traveler’s biographic data, potentially eliminating the need to scan a passport or collect fingerprints at every entry. Failure to comply with the requirement to be photographed may result in a determination of inadmissibility or a violation of the terms of the foreign national’s status.

WHAT EMPLOYERS NEED TO KNOW

Foreign national business and work visa travelers should expect to have their photographs taken and compared biometrically by CBP upon both arrival and departure from the U.S. The biometric screening process that is currently implemented at major ports of entry and exit is now a mandatory requirement for compliance with U.S. immigration law. CBP expects to fully implement the system at all commercial airports and seaports within the next three to five years.

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

Amy McCoy

The Department of State released the December 2025 Visa Bulletin and USCIS will continue to accept employment-based Adjustment of Status applications based on the Dates for Filing chart. For December 2025, all categories will remain unchanged under the Dates for Filing chart with the exception of EB-5 China (Unreserved), which will advance by approximately three weeks. Notably, the Final Action Dates chart will advance approximately 2 weeks to 2 months depending on the specific employment-based category, which may allow for the issuance of green cards or immigrant visas for previously filed applications.

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 will hold steady at May 15, 2023.
• EB-1 India will maintain a filing cutoff date of 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.
• EB-2 China will maintain a filing cutoff of December 1, 2021.
• 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 remain unchanged at July 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, 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. China will advance by approximately three weeks to July 22, 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?  

As noted in the December Visa Bulletin, the Dates for Filing chart will continue to remain the same from last month aside from EB-5 China (Unreserved), which will advance by three weeks. Many employment-based categories will advance under the Final Action Dates chart from approximately 2 weeks to 2 months depending on the employment-based category, which will allow for additional Adjustment of Status applications to become eligible for approval. For employees abroad, the forward movement in the Final Action Dates reduces the wait time until immigrant visa interviews become available in some categories. Despite some advancement under the Final Action Dates chart, many categories remain significantly backlogged. Employers should continue to plan for long-term retention, immigration cost budgeting (including possible extensions), and potential changes in visa status as green card timing continues to remain uncertain.

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

The holiday season is here and it is critical that foreign nationals plan ahead to minimize potential risk and delays with traveling abroad and entering the U.S. Our holiday travel checklist is designed to help foreign national employees and employers schedule appointments and gather required documentation in advance.

U.S. ENTRY: STATUS AND DOCUMENTATION CHECKLIST

• Confirm the validity of passports for all travelers. Valid passports are required for all international travelers and accompanying family members, including U.S. and Canadian citizens. Renew passports in advance to ensure at least six months’ validity at the time of any visa application or entry to the U.S. Many countries allow renewal of passports by mail through their consulates or embassies in the U.S.
• Carry all documents required for admission to the U.S. Upon entry to the U.S., some entrants may need to show additional evidence of work authorization or government approval in addition to a passport and valid visa stamp. Documents vary by visa classification but may include an original I-797, Approval Notice; endorsed Form I-129S; Advance Parole Document; Employment Authorization Document (EAD); Form DS-2019 with travel authorization; and/or endorsed Form I-20.
• Verify the U.S. admission classification/expiration date. Upon entry to the U.S., foreign nationals should expect a U.S. Customs and Border Protection (CBP) officer to create an electronic I-94 record. At many Ports of Entry, CBP has stopped issuing a passport stamp. If a stamp is issued, ensure that the classification is correct and immediately alert CBP to any errors.
• Review your I-94 record. After each entry to the U.S., foreign nationals should access and review the electronic I-94 record available on the CBP website. This is more important than ever, as CBP moves away from stamping passports at entry. Expiration dates for the I-94, underlying petition, or work permit may be different from the expiration date on the visa in the passport or on the passport stamp, if issued. Send Immigration Counsel a copy of your I-94. Notify Immigration Counsel as soon as possible if you notice any errors on your I-94 record.

CHECKLIST FOR FOREIGN NATIONAL EMPLOYEES (AND EMPLOYERS) WHO DO NOT HAVE A VALID VISA IN THEIR PASSPORT

International travelers should expect busy consulates and U.S. Ports of Entry. Foreign nationals may encounter long wait times when applying for a visa. Note that under current Dept. of State guidance, all nonimmigrant visa applicants must schedule an interview at a U.S. embassy or consulate in their country of nationality or country of residence.

• Consult with Immigration Counsel in advance. Immigration counsel can help to prepare for enhanced vetting and for the consular interview before you apply for a visa. Schedule consultations 60-90 days in advance whenever possible. Keep in mind that appointment wait times at U.S. consulates can range from a few days to a few months.
• Check the Consulate’s website prior to travel. If you require visa issuance at a consulate abroad, review information on specific procedures regarding booking visa appointments and documentation required for visa interviews. Consular procedures vary widely and are subject to change with little notice.
• Complete Form DS-160. This form is required for all visa applicants including dependent spouses and children of principal visa holders. Retain a copy of the final form at the time of submission. Many consulates require that the visa application be completed prior to scheduling a visa appointment.
• Review your visa application/petition. Review the petition prepared by Immigration Counsel on your behalf prior to traveling, to ensure the accuracy of the information reported and consistency with visa applications.
• Review your online profiles. This includes information in online employee profiles and company pages as well as social media profiles. Government officials at USCIS, consulates, and U.S. Ports of Entry review online profiles of visitors and foreign workers applying for benefits or seeking entry to the U.S.
• Update company information. Employers should update company pages and sites such as Dunn & Bradstreet that may be referenced by immigration officers to verify employment or business information.
• Gather employment verification. If you are applying for a temporary work visa, most consulates require current employment verification letters from employers. Request these letters in advance of travel to allow adequate time for Human Resources to prepare them. Maintain copies of recent paystubs as evidence of current employment.
• Disclose any arrests/detainment to Immigration Counsel. Consult with Immigration Counsel if you have been arrested or detained by law enforcement, even if not charged/convicted. Consult with counsel before departing the U.S. or applying for a visa or any other immigration benefit. Citations, arrests or detentions may require disclosure on applications and may impact immigration status and/or eligibility for immigration benefits.
• Check consulate wait times. Review the consulate website for visa appointments and processing times and alert Immigration Counsel immediately if visa issuance is delayed due to security or background clearance issues.
• Confirm consulate holiday hours. Consulates abroad observe both U.S. and local country holidays and some offices may be short-staffed due to vacations.

*TIP for visa appointments:  If the consulate has long wait times, book an appointment at the earliest date possible and check the website regularly for newly released appointment times that are more desirable.

TRAVEL DOCUMENTS IF YOU DO Not NEED A VISA FROM THE CONSULATE

• Visa Waiver Program travelers must have a valid ESTA approval. The Electronic System for Travel Authorization (ESTA) is a mandatory, online pre-screening system for Visa Waiver Program (VWP) travelers. ESTA is only available for travelers who are citizens of recognized VWP countries who wish to enter the U.S. for B-1 business/B-2 tourism purposes. VWP travelers must obtain a valid ESTA approval prior to travel, which may be valid for up to two years. Note that a new ESTA approval is needed when a VWP traveler obtains a new passport and/or changes his/her name or country of citizenship, and when answers to any of the VWP eligibility questions (e.g., regarding an arrest or visa denial) change.
• Adjustment of Status applicants and Advance Parole travel documents. With the exception of some H and L visa holders, individuals with pending I-485, Adjustment of Status applications must have a valid original Advance Parole travel document issued prior to departing the U.S. Departing the U.S. without an Advance Parole may result in denial of the I-485 application. Note that the Advance Parole document must be valid when you depart the U.S. and valid when you return.
• Enhanced Scrutiny & Security Screening. Travelers seeking reentry to the U.S. could experience enhanced screening upon arrival with an increased likelihood of electronic device search.  Travelers may wish to reduce the number of devices that they carry when traveling; review data stored on the device that may be confidential in nature and could be subject to search; consider what is posted on social media accounts. While travelers are not legally required to provide U.S. Custom and Border Protection agents with their electronic device, they could be denied admission for failure to do so. Travelers should also be prepared for enhanced scrutiny and security screening during the visa application process (administrative processing). Nationals of certain countries including nationals of China may be at greater risk of administrative processing.
• Travel Ban for Nationals from Certain Countries. The administration has implemented restrictions upon entry for nationals from certain countries which become effective soon after announced.  Currently full and partial restrictions are in place for nationals of 19 countries.

HELPFUL LINKS

• To find the nearest foreign consulate in the U.S. visit Foreign Embassies and Consulates in the U.S.
• Check U.S. consulate wait times at  Consulate Visa Wait Times
• Find links to U.S. consular posts around the world at  Consular Posts
• For information on the Visa Waiver Program and current VWP countries visit Visa Waiver Program
• Obtain and review your electronic I-94 record at CBP I-94s
• Complete the DS-160 Online Nonimmigrant Visa Application at DS-160

For specific travel-related questions, please contact your Gibney representative or email info@gibney.com.

Jennifer Davis

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.