Category: Alerts

Two recent federal court decisions out of Rhode Island and Massachusetts have temporarily limited the implementation of several immigration-related policies adopted by the current Administration. While the decisions do not resolve the underlying legal disputes, they represent important developments for employers and foreign nationals with pending immigration matters.

Rhode Island Court Vacates USCIS Adjudication Pause

On June 5, 2026, the U.S. District Court for the District of Rhode Island issued a significant decision in Dorcas International Institute of Rhode Island v. USCIS, holding that USCIS exceeded its statutory authority when it implemented policies that effectively halted adjudication of immigration benefit applications for nationals of designated “travel ban” countries. The court found that the policies violated both the Immigration and Nationality Act (INA) and the Administrative Procedure Act (APA).

The court vacated four USCIS policies that:

• Suspended adjudication of many immigration benefit applications filed by nationals of designated countries;
• Paused certain asylum-related adjudications;
• Required re-review of previously approved immigration benefits; and
• Directed adjudicators to treat an applicant’s country of origin as a significant negative discretionary factor.

As a result of the ruling, USCIS may resume adjudicating affected applications, including adjustment of status applications, employment authorization requests, naturalization applications, and certain asylum-related benefits. The decision does not require USCIS to approve any application, but it does require the agency to adjudicate cases under existing immigration law rather than pursuant to the vacated policies.

The Department of Justice is expected to appeal the decision, and employers should anticipate the possibility of further litigation or requests to stay the ruling while appellate review proceeds.

Massachusetts Court Strikes Down $100,000 H-1B Fee

In a separate and equally significant development, on June 8, 2026, the U.S. District Court for the District of Massachusetts ruled that the Administration’s $100,000 supplemental fee on certain H-1B petitions is unlawful. The court concluded that the fee functioned as a tax rather than a permissible regulatory fee and therefore could not be imposed by the Executive Branch without authorization from Congress. As a result, the court vacated the fee requirement nationwide.

The ruling is particularly important for employers considering H-1B filings that had previously been subject to the $100,000 payment requirement, including petitions approved for consular notification. Unless the decision is stayed or reversed on appeal, USCIS and the Department of State lack authority to require payment of the supplemental fee before adjudicating or issuing qualifying H-1B visas.

While this decision provides immediate relief to many employers, it is unlikely to be the final word. The Department of Justice is expected to appeal and may seek a stay of the district court’s order while appellate proceedings are pending. The Department of State and USCIS have not yet issued implementation guidance and thus employers should continue to monitor developments closely before making filing decisions based solely on the ruling.

Kristen Heckman

The June 2026 Visa Bulletin issued by the Department of State (DOS) on May 4, 2026 and the USCIS Adjustment of Status Filing Chart, updated on May 14, 2026 confirmed that employment-based Adjustment of Status (AOS) applications will be accepted for processing pursuant to the Final Action Dates chart for June. The initial announcements indicated retrogression for both EB-1 India and EB-2 India, while EB-3 Professionals and Skilled Workers will advance for both China and India, as further detailed below.

Subsequently, on May 22, 2026, DOS announced that all of the available immigrant visas in the EB-2 India for fiscal year (FY) 2026 have been issued. As a result, the category was made unavailable through the end of the fiscal year. Accordingly, U.S. Embassies and Consulates cannot issue immigrant visas and USCIS cannot approve AOS applications for EB-2 India applicants through September 30, 2026. Annual limits will reset at the start of the fiscal year which commences on October 1, 2026.

EMPLOYMENT-BASED (EB) PRIORITY DATE SUMMARY FOR FINAL ACTION DATES 

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 will hold steady at April 1, 2023.
• EB-1 India will retrogress by three and half months to December 15, 2022.

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, initially retrogressed to September 1, 2013 and subsequently made unavailable.

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 advance by six weeks to August 1, 2021.
• EB-3 India will advance by one month to December 15, 2013.
• EB-3 Philippines will remain at August 1, 2023.

Other Workers

• Other Workers (including El Salvador, Guatemala and Honduras, and Mexico) will maintain a filing cutoff date of February 1, 2022.
• Philippines will retrogress by three months to November 1, 2021.
• China will advance by two months to April 1, 2019 and India will advance by one month to December 15, 2013.

EB-5: Fifth Preference Category (Immigrant Investors)

• For the EB-5 Unreserved categories (C5, T5, I5, and R5), China will maintain a filing cutoff date of 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 AOS application based on the dates outlined above.

WHAT SHOULD EMPLOYERS EXPECT?  

DOS has reiterated in the June 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 DOS continues to caution that as demand increases or policies change, retrogression may occur later in the fiscal year to remain within annual limits.

DOS has indicated that high demand and number use for EB-1 and EB-2 India have made it necessary to retrogress the Final Action Dates for these categories to maintain immigrant visa usage within FY 2026 annual limit. DOS also noted that further retrogression or reflecting categories “unavailable”, may be necessary in the coming months if EB-1 India or EB-2 India numerical limits are reached before the fiscal year ends. Sufficient demand and increased number use by applicants chargeable to EB-2 China, EB-3 Philippines, and EB-5 India (unreserved) categories may make it necessary to retrogress the Final Action Dates or make these categories unavailable in the coming months to hold number use within the FY 2026 annual limit. The situation will be continually monitored and any necessary adjustments will be made accordingly.

In addition to ongoing visa number constraints, employers should be aware of significant policy developments affecting the AOS process. On May 22, 2026, USCIS issued Policy Memorandum PM-602-0199, emphasizing that AOS is a discretionary benefit and characterizing it as an “extraordinary” form of relief rather than a routine alternative to immigration visa processing through a U.S. Consulate abroad. USCIS indicated that officers should exercise greater discretion when adjudicating AOS applications and consider whether consular processing may be the more appropriate avenue in individual cases.

Following substantial concerns within the immigration community, USCIS and administration officials provided additional clarification on May 29, 2026, confirming that there was no major change in policy and that only some applicants would be required to return to their home countries to apply for a green card. A Department of Homeland Security spokesperson indicated that the policy memo was merely a reminder to officers of their discretionary authority which always existed on a case-by-case basis. Nevertheless, significant uncertainty remains regarding how the policy will be implemented in practice and whether adjudication standards will vary amount officers and field offices.

Given the combined impact of visa retrogression, visa number uncertainty, and evolving USCIS adjudication policies, employers should continue to proactively assess workforce immigration strategies. This includes maintaining underling nonimmigrant status where possible, timely filing extensions and amendment, evaluating travel and consular processing risks, and preparing potentially heightened Requests for Evidence or discretionary review during the AOS process. Early planning remains critical to minimizing disruptions to employee work authorization and long-term immigration sponsorship strategies.

Inez Macedonio

For additional information please contact your designated Gibney representative or email info@gibney.com. This alert contains general information only, and is not intended to provide legal advice.  Please contact immigration counsel for specific legal advice regarding your case.

On May 22, 2026, the U.S. Department of State (DOS) announced that the quota for available immigrant visas in the Employment-Based Second Preference (EB-2) for applicants chargeable to India had been reached for fiscal year (FY) 2026. As a result, the EB-2 category was made unavailable through the end of the fiscal year.

U.S. consular posts cannot issue immigrant visas and United States Citizenship and Immigration Services (USCIS) cannot accept or approve Adjustment of Status (AOS) applications for EB-2 India applicants through September 30, 2026. The annual limits on immigrant visa availability will reset at the start of the USCIS fiscal year which commences on October 1, 2026.

Annual Immigrant Visa Quotas and Retrogression – Some Background

Pursuant to the Immigration and Nationality Act (INA) per fiscal year 140,000 employment-based immigrant visas (green cards) may be issued to qualified applicants, plus any unused visas from the family-based categories in the preceding year. The visas are distributed among five employment-based (EB) preference categories and then allocated by country of birth according to Congressionally-mandated per country quotas. The EB-2 preference category is reserved for professionals with advanced degrees or individuals with exceptional ability in the sciences, arts, or business. Individuals born in India are “chargeable” to the per-country quota established for India.

Each month, DOS reviews the number of immigrant visas used, the projected demand for visas, and the number of visas remaining under the annual numerical limit for the country and/or preference category. Visa retrogression occurs when the number of individuals seeking a green card exceeds the number of visas available in the applicable employment-based preference category.  A “cut-off date” is then set and published in the Visa Bulletin, the DOS’s monthly report on immigrant visa availability. A queue to apply for the green card ensues. Foreign national applicants are assigned a place in the queue based on their priority date, preference category, and country of birth.

For employment-based immigrants, the priority date is determined by the date that a PERM labor certification application is filed with the U.S. Department of Labor for the sponsored foreign national employee.  In cases where a PERM labor certification is not required (e.g., for EB-1 petitions and EB-2 National Interest Waiver petitions), the priority date is determined by the date that an I-140 immigrant petition is filed with USCIS.

In order for a foreign national to apply for a green card, their priority date must be available or “current” on the monthly Visa Bulletin.  An immigrant visa number is only available when the priority date is earlier than the cut-off date shown on the Visa Bulletin for the applicable preference category and country of birth.

What This Means for Employers

For employers with highly skilled employees with cases that fall in the EB-2 India category:

• AOS Processing Paused: USCIS will not accept new AOS applications and will pause the processing of pending AOS applications through September 30, 2026.
• Consular Processing Paused: U.S. consular posts abroad will not issue visas for the remainder of the fiscal year through September 30, 2026.
• FY 2027 Reset: Annual limits will reset with the start of the new fiscal year (FY 2027) on October 1, 2026.
• Resumed Issuance: After October 1, 2026, U.S. embassies and consulates abroad can resume issuing immigrant visas in this category to qualified applicants. Additionally, USCIS will resume accepting AOS applications and processing pending applications in accordance with the prospective October Visa Bulletin.

Important Work Authorization Note: Certain employees in H-1B status are eligible for a three (3) year extension of H-1B status beyond their visa maximum stay date while subject to visa retrogression pursuant to the American Competitiveness in the 21st Century Act (AC21). These employees are eligible for ongoing employment in the U.S. until a green card can be issued.

Amy McCoy

For additional information please contact your designated Gibney representative or email info@gibney.com. This alert contains general information only, and is not intended to provide legal advice.  Please contact immigration counsel for specific legal advice regarding your case.

Due to the changing immigration landscape in the United States and globally, there is a moderate level of risk with return to the U.S. following international travel at this time.  We strongly advise all nonimmigrant visa holders to be prepared to clearly explain their anticipated activities in the U.S. (i.e., work, school, internship, business meetings, etc.) and be sure that they align with the requested nonimmigrant visa category both when applying for a visa and when seeking admission to the U.S. upon return from international travel.

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 (CBP) agents with their electronic device, they could be denied admission for failure to do so.

The current administration has implemented restrictions upon entry for nationals from certain countries which became effective soon after announced.  Currently full and partial restrictions are in place for nationals of 39 countries.

It’s important for all travelers to be extra cautious and alert to any changes that could impact their ability to travel.  Each traveler must maintain the appropriate documentation for reentry to the U.S.

Below is a general list of documentation and guidance for travelers.  We note that depending on the individual’s circumstances additional documentation may be recommended.

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 arrival in the U.S., some entrants may need to show additional evidence of work or status authorization 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 travel endorsed Form I-20. Proof of COVID-19 vaccination is no longer required for international travelers entering the U.S.
• Caution for B-1/B-2 or ESTA Travelers: Travelers seeking admission as business visitors in B-1 status or under the Visa Waiver Program (ESTA) should consult immigration counsel before travel if they have questions regarding the scope of permissible business activities. In general, engaging in productive work, including remote work, while physically present in the United States may be viewed as unauthorized employment.
• Verify the U.S. admission classification/expiration date. Upon entry to the U.S., foreign nationals should expect a CBP officer to create an electronic I-94 record of their admission. 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 no longer stamps 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 once you have retrieved it. Please remember, the Admit Until Date on the electronic I-94 is the only date that legally matters — not the visa or petition expiry date.

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

• Consult with Immigration Counsel in advance of travel. 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.
• Home or Country of Residence requirement. The U.S. Department of State (DOS) now requires visa applicants to schedule their visa interview appointments at the U.S. Embassy or Consulate in their country of nationality or residence.
• Visa Appointments for all family members. DOS has limited the availability of interview waivers for most nonimmigrant visa categories. As a result, all nonimmigrant visa applicants, including applicants under the age of 14 and over the age of 79, are now generally required to attend in-person interview with a consular officer.
• Complete Form DS-160.This form is required for all temporary 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. Be aware that consular posts are increasingly utilizing automated tools to cross-reference DS-160 data with past applications and public social media footprints. Ensure consistency across all historical filings.
• 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 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, U.S. 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. Note: Consular officers are now required to social media accounts on online presence for several nonimmigrant visa classifications.
• 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. Ensure that that the employment verification letter is consistent with any immigration petition underlying the visa application, if applicable.
• 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.
• Warning: Even successful interviews may result in ‘Administrative Processing’ (Section 221(g)), which can delay visa issuance by several weeks. Travelers should have a contingency plan for an extended stay abroad.

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 or B-2 tourism purposes. VWP travelers should apply for ESTA at least 72 hours prior to travel and must obtain a valid ESTA approval before traveling. The ESTA clearance will 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 their 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.
• Automatic Visa Revalidation. Travelers planning short trips (under 30 days) to Canada or Mexico should consult counsel regarding Automatic Visa Revalidation, which may allow re-entry even if the visa stamp in the passport has expired.

HELPFUL LINKS

• Find links to U.S. consular posts around the world at  Consular Posts
• To find the nearest foreign consulate in the U.S. visit Foreign Embassies and Consulates in the U.S.
• Check U.S. consular wait times at Visa Appointment Wait Times
• 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

Amy McCoy

On May 21, 2026, U.S. Citizenship and Immigration Services (USCIS) issued Policy Memorandum PM-602-0199, emphasizing the discretionary nature of Adjustment of Status (AOS) applications under Section 245 of the Immigration and Nationality Act (INA). While early headlines and the memo’s rhetoric have caused significant concern by framing AOS as an “extraordinary form of relief,” the substantive immigration laws and eligibility regulations have not changed. On May 29, 2026, a USCIS spokesperson clarified that the announcement was intended as reminder to reviewing officers of their discretionary authority, not as a major policy shift.

This is not a nationwide freeze on AOS processing – applications, even those with disclosed minor violations or past arrests, continue to be reviewed and approved. Further, following on the May 29^th announcement, most AOS applicants may see little to no change in case processing.

Background

AOS is the process through which an eligible foreign national who is physically present in the United States can obtain U.S. lawful permanent resident (LPR) status or a “green card”. There is also a route to LPR status known as “consular processing” through which eligible individuals apply for an immigrant visa through an overseas U.S. consular post. AOS is typically the last step in an employment-based permanent resident case through which the applicant submits a personal application to request the adjustment of his or her status to LPR. It is the most common pathway to LPR status for individuals who are already living in the U.S.

While a USCIS officer’s exercise of discretionary judgement has always been an element of AOS adjudication, the May 21 memorandum serves as a directive to adjudicating officers to look more closely at both positive and negative discretionary factors under a “totality of the circumstances” framework in determining whether the case is eligible for AOS processing. Of note, the absence of negative factors alone is not sufficient to warrant AOS processing.

Key Takeaways from the Guidance & Subsequent Statements

Reviewing officers are directed to evaluate the totality of an applicant’s history in determining whether AOS is appropriate.

Positive factors include:

• strong family ties and caretaking duties in the U.S.
• history of good moral character and community standing
• consistent employment history and economic/tax contributions
• long-term U.S. residence, property ownership, or business ties

Negative factors include:

• past or current fraud, misrepresentation, or false testimony
• status violations or unauthorized employment
• conduct inconsistent with the purpose of temporary nonimmigrant status
• failure to comply with admission or parole conditions

What This Means for Employers

• Permitted Filings Continue: This directive does not prevent the filing or approval of AOS applications. For the vast majority of sponsored workers, moving forward with an AOS application remains the most practical path forward.
• Impact on Dual Intent Classifications (H-1B, L-1): The memorandum explicitly acknowledges that filing for AOS is completely consistent with maintaining dual-intent statuses. However, it notes that holding a dual-intent visa does not automatically shield an applicant from a discretionary review.
• Impact on Non-dual Intent Classifications (E, F-1, J-1, O-1, TN). Applicants in a non-dual intent visa category may face higher scrutiny regarding their original immigrant intent and subsequent conduct.

Planning Ahead for Employers

• Maintain compliance documentation of authorized employment and lawful status.
• Be prepared to provide discretionary evidence for applicants, including highlighting proof of any positive factors and preparing evidence to address any negative factors if questioned.
• Work with your immigration attorney to determine whether to file an AOS or pursue consular processing would be in the best interests of the applicant.

Gibney will be closely monitoring the ongoing adjudications of AOS applications and any further USCIS announcements related to same. For questions regarding how this policy impacts your specific workforce or pending cases, please reach out to your Gibney attorney or email info@gibney.com.

Amy McCoy

The Department of Homeland Security (DHS) published an interim final rule which authorizes adjudicating officers to reject or deny benefit requests for invalid signatures.

Key Elements

• Rejections/Denials: USCIS will reject or deny cases that have insufficient signatures.
• Invalid Signatures: Invalid signatures include those which are typed, forged, copied from another document, stamped or pasted using Adobe.
• Wet Signatures: Wet signatures are still accepted and photocopies or scanned copies of original forms with wet signatures are accepted; USCIS will retain the authority to later request evidence of the original wet signatures.
• No Cure Permitted: Under the new rule, there is no ability to fix, or cure, an insufficient signature. Currently, for minor signature issues, USCIS officers issued a Request for Evidence (RFE) allowing the petitioner the ability to submit new wet-ink forms, and/or a statement confirming that the signature was authorized. Petitions with invalid signatures will now be rejected or denied, and will no longer be able to be cured.
• Filing Fees: Fees will not be returned if USCIS denies an application or petition for deficient signatures.
• Exceptions: Applications for a Certificate of Naturalization will be rejected rather than denied for insufficient signatures.

When Does the New Rule Take Effect?

The rule applies to benefit requests submitted on or after July 10, 2026.

What Employers Can Expect

• USCIS drop boxes will reject all applications and petitions where there is an obvious deficiency, such as a missing or typed signature. Once a petition or application is receipted and accepted, USCIS officers will have the discretion to reject or deny cases with insufficient signatures.
• The rule does not differentiate between a preparer’s signature and that of an applicant/petitioner. All signature fields will be subject to scrutiny during compliance reviews.

What Should Applicants and Petitioners Do?

• All applications and petitions should be signed by the applicant/petitioner and their counsel (if applicable) in wet ink. While copies of signed forms may be submitted to USCIS, the originals must be maintained in the event that they are requested by USCIS.
• Employers should confer with their counsel to ensure that their signing and filing practices comply with the rule prior to the July 10, 2026 implementation date.

Roderick Potts

As of April 27, 2026, U.S. Citizenship and Immigration Services (USCIS) has implemented a new security vetting process that is already impacting adjudications across multiple case types. The American Immigration Lawyers Association (AILA), along with national media coverage indicate that many pending applications are being placed on hold while additional background checks are completed. This initiative follows a comprehensive review of existing screening measures and is designed to address identified national security and public safety risks.

Background

The increased vetting follows from Executive Order 14161, Protecting the United States from Foreign Terrorist and Other National Security and Public Safety Threat. Signed on January 20, 2025, this order mandates strict screening of foreign nationals, particularly those from regions or nations with identified security risks.

Furthering this initiative,  Executive Order 14385, Protecting the National Security and Welfare of the United States and its Citizens from Criminal Actors, Signed on February 6, 2026, this order expands data-sharing between the Federal Bureau of Investigation (FBI) and the U.S. Department of Homeland Security (DHS), allowing for USCIS to have enhanced access to FBI criminal history databases. To comply, USCIS has issued several policy memoranda placing holds on specific pending workloads while enhanced vetting protocols are developed and applied.

What This Means for Employers and Foreign Nationals

• Adjudication Holds: USCIS field and asylum offices have begun notifying applicants that adjudications are subject to a hold while the new, updated vetting process is implemented.
• Impacted Applications: While all benefit types are being reviewed, the most immediate impact is on the following applications/applicants:
  • Adjustment of Status (Green Card) applications (Form I-485)
  • Naturalization applications (Form N-400)
  • Asylum applications (Form I-589).
  • High-Risk Designations: Applications from individuals originating from countries identified in recent travel ban proclamations are subject to the most rigorous review.
• Biometric Resubmission: For many pending applications where biometrics were collected before April 27, 2026, USCIS is requiring resubmission or a new review of fingerprints for expanded criminal history checks, identity verification, and ad hoc security checks.
• Exemptions: Some exemptions exist for certain petitions filed by U.S. citizens, intercountry adoption forms, certain rescheduled oath ceremonies, statutory and regulatory decision issuance, certain special immigrant visa petitions, certain employment authorization documents, and asylum applications from non-high-risk countries, and applications associated with medical physicians. USCIS has noted that they will continue to review all application types and lift holds for both individual and group cases as appropriate.

What to Expect

• Longer Processing Times: While USCIS has indicated that delays should be brief, the large volume of impacted cases may lead to longer wait times.
• New Biometrics Requests: Applicants should be prepared to receive new Appointment Notices for biometrics, even if they have previously completed this step.
• Shorter EAD Validity: USCIS has indicated it has shortened the validity periods for certain Employment Authorization Documents (EADs) to ensure more frequent security checks.
• Travel Risks: Individuals with pending I-485s who do not have a valid Advance Parole document (or an exemption from the requirement) should exercise extreme caution in planning international travel. Increased vetting may delay the issuance of new travel documents.

Gibney will continue to monitor for ongoing developments and updates on processing delays and timing. For additional information, please contact your designated Gibney representative or email: info@gibney.com.

   
Inez Macedonio                                          Amy McCoy

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.