Tag: Immigration

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.

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.