Category: Alerts

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. U.S. Consulates now require an in-person interview in order to apply for a visa, and appointment wait times at U.S. consulates can range from a few weeks to several 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. 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. Note: the U.S. Department of State now requires mandatory online presence review for certain nonimmigrant visa categories including H-1B, H-4, TN, TD, F-1, and F-2, among others. As part of this expanded vetting, visa applicants must provide an accurate and complete listing of social media handles on their DS-160 and set social media profiles to “public” at least 7-10 days before the visa interview and maintain public visibility after the visa interview, until visa issuance.
• 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.
• New Consular Screening Questions for Nonimmigrant Visa Applicants. The State Department has directed consular officers worldwide to add asylum-related questions to nonimmigrant visa interviews: (1) Have you experienced harm or mistreatment in your country of nationality or last habitual residence? (2) Do you fear harm or mistreatment in returning to your home country of nationality (or permanent residence)? A “yes” to either question, or refusal to answer, will result in denial of the nonimmigrant visa. Please contact Immigration Counsel if you have any concerns about responding to these questions.

*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. Individuals intending to enter pursuant to Advance Parole should consult with immigration counsel ahead of departing the U.S. to review risks.
• 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 became effective soon after announced.  Currently full and partial restrictions are in place for nationals of 39 countries.

IMMIGRATION DOCUMENTS WHILE IN THE U.S. AND DOMESTIC TRAVEL CONSIDERATIONS

• Carrying Immigration Documents while in the U.S. All foreign nationals over 18 years of age are required to have their immigration documentation in their personal possession at all times. Nonimmigrant visa holders must carry the print-out of their current I-94 documents at all times. Permanent residents must carry their valid Green Card at all times. In addition to the above required documents, individuals whose underlying status has expired and have a pending petition for extension of status or application for adjustment of status should carry the receipt notice for the pending application at all times.
• Domestic Air Travel Considerations. Foreign nationals whose underlying nonimmigrant status has expired, but who have a timely filed, pending application to extend their stay or status, may consider exercising caution before undertaking domestic air travel. Recent media reports indicate that ICE has questioned or detained foreign nationals at U.S. airports in connection with domestic flights, including individuals with pending immigration applications who may be in a period of authorized stay. Individuals whose underlying status has expired and have a pending extension application or application for adjustment of status should contact Immigration Counsel in advance of domestic air travel and carry their passport, most recent Form I-94, USCIS receipt notice, and prior approval notice.

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.

OVERVIEW

November 2026 Visa Bulletin Released

For the month of November, USCIS will accept employment-based Adjustment of Status applications under the Dates for Filing chart in the November 2026 Visa Bulletin.  For employment-based immigrant visa categories, the cut-off dates are substantially similar to the October Visa Bulletin.

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

The Dates for Filing dates are as follows:

EB-1, First Preference Category

• EB-1 Worldwide (including Mexico, and Philippines) will remain current.
• EB-1 China will remain as July 1, 2024.
• EB-1 India will remain as July 1, 2024.

EB-2, Second Preference Category

• EB-2 Worldwide (including Mexico, and Philippines) will remain as March 15, 2026.
• EB-2 China will remain as January 1, 2023.
• EB-2 India will remain as January 15, 2015.

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

• EB-3 Worldwide (including Mexico) will remain as August 1, 2024.
• EB-3 China will remain as April 1, 2024.
• EB-3 India will remain as January 15, 2015.
• EB-3 Philippines will remain as January 1, 2024.

Other Workers

• Other Workers (including Mexico and the Philippines) advances to July 1, 2022.
• China will remain as October 1, 2020
• India will remain as January 15, 2015.

EB-4 – Certain Special Immigrants & Certain Religious Workers

• The filing will remain as January 1, 2025 across all countries.

EB-5: Fifth Preference Category (Immigrant Investors)

• For the EB-5 Unreserved categories (C5, T5, I5, and R5), China continues to be assigned a filing cutoff date of March 1, 2021 and India continues to be assigned a filing cutoff date of May 1, 2024. 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?  

There will be no substantial change in the majority of the cut-off dates from the October Visa Bulletin.  As such, employers will have additional time for processing cases that were identified as eligible for filing in October. Employers are advised to work closely with immigration counsel to identify employees who may have become eligible to file adjustment of status applications.  Due to the unpredictable nature of immigrant visa availability, it is always recommended to make every effort to file adjustment of status applications as soon as the applicant’s priority date becomes current.

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

OVERVIEW

October 2026 Visa Bulletin Released

The Dept. of State released the October 2026 Visa Bulletin.  This is the first Visa Bulletin of the new USCIS Fiscal Year 2027. To start off the new year, USCIS will accept employment-based Adjustment of Status applications under the Dates for Filing chart for October. For employment-based immigrant visa categories, there has been advancement across the majority of immigrant visa categories with some retrogression in dates for the Worldwide category.

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

The Dates for Filing dates are as follows:

EB-1, First Preference Category

• EB-1 Worldwide (including Mexico, and Philippines) will remain current.
• EB-1 China will advance to July 1, 2024.
• EB-1 India will advance to July 1, 2024.

EB-2, Second Preference Category

• EB-2 Worldwide (including Mexico, and Philippines) retrogresses from being current to a filing cutoff of March 15, 2026.
• EB-2 China advances to January 1, 2023.
• EB-2 India becomes available again with a filing cutoff of January 15, 2015.

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

• EB-3 Worldwide (including Mexico) retrogresses to a filing cutoff date of August 1, 2024.
• EB-3 China advances to April 1, 2024.
• EB-3 India advances to January 15, 2015.
• EB-3 Philippines advances to January 1, 2024.

Other Workers

• Other Workers (including Mexico and the Philippines) advances to June 1, 2022.
• China advances to October 1, 2020
• India advances to January 15, 2015.

EB-4 – Certain Special Immigrants & Certain Religious Workers

• The filing cutoff is January 1, 2025 across all countries.

EB-5: Fifth Preference Category (Immigrant Investors)

• For the EB-5 Unreserved categories (C5, T5, I5, and R5), China is assigned a filing cutoff date of March 1, 2021 and India is assigned a filing cutoff date of May 1, 2024. 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?  

With regard to the availability of FY 2027 immigrant visa numbers, in the October Visa Bulletin, the Dept. of State notes that, as summarized above, the dates for filing and final action dates have advanced across various immigrant visa categories. They further provide that some employment-based visa categories for “Rest of World” countries have necessarily retrogressed to keep visa issuances within FY 2027 quarterly and annual limits. The Dept. of State assures that immigrant visa availability is being continually monitored, and any necessary adjustments will be made accordingly.

Due to the advancement and resumption of visa issuance across many employment-based categories, employers are advised to work closely with immigration counsel to identify employees who may have become eligible to file adjustment of status applications.

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

DHS Proposes Significant New Fees for Optional Practical Training

The U.S. Department of Homeland Security (DHS) has proposed substantial new fees for foreign students participating in Optional Practical Training (OPT), including pre-completion OPT, post-completion OPT, and the 24-month STEM OPT extension. The rule would impose fees of $70,000 for initial OPT and $30,000 for each subsequent OPT recommendation, potentially significantly increasing the cost of employing international graduates and affecting workforce planning, hiring budgets, and immigration sponsorship strategies.

The proposed rule was published in the Federal Register on October 8, 2026. DHS has invited public comments on the proposal, with a general comment deadline of November 9, 2026. If finalized as proposed, the new fees would take effect 60 days after publication of the final rule. The effective date has not yet been determined, and the proposed fees are not currently in effect.

Key Provisions

DHS proposes the following fees for F-1 students seeking OPT authorization:

• $70,000 for initial OPT.
• $30,000 for each subsequent OPT recommendation, after the initial fee has been paid.

Importantly, these fees are not limited to the traditional sequence of 12 months of post-completion OPT followed by a 24-month STEM OPT extension. The proposal covers pre-completion OPT as well as post-completion OPT, including STEM OPT extensions. For example, a student who first participates in pre-completion OPT and later receives a recommendation for post-completion OPT could incur $100,000 in fees across those two recommendations. A student who proceeds directly to post-completion OPT would incur the initial $70,000 fee, with a subsequent $30,000 fee applying to a later STEM OPT extension.  The proposal excludes Curricular Practical Training (CPT).

Under the proposal, the SEVP-certified educational institution would be responsible for paying the applicable fee before its Designated School Official (DSO) recommends the student for OPT. The DSO would need to record payment in the Student and Exchange Visitor Information System (SEVIS) before the student could apply to U.S. Citizenship and Immigration Services (USCIS) for employment authorization.

Treatment of Current OPT Employees and Transition Period

The proposed transition framework would apply the fees prospectively to OPT recommendations dated on or after the effective date. Under the proposal:

• Employees already working under approved OPT: The proposal would not impose a new fee on an existing, previously approved period of OPT.
• Employees with OPT recommendations issued before the effective date: The proposed fee would not apply to an OPT recommendation made before the effective date, even if the employee’s application for employment authorization remains pending.
• Employees with prior OPT participation who seek a new DSO recommendation after the effective date: The $70,000 initial fee would apply to the first OPT recommendation on or after the effective date, even if the student participated in OPT before the rule took effect. Thus, if an employee is working under an earlier OPT authorization made prior to the effective date, a DSO recommendation for a STEM OPT extension made after the effective date would trigger a $70,000 fee.

Potential Impact on Employers

If finalized as proposed, the fees could materially affect employers that recruit international graduates, particularly in STEM and other specialized fields. Although the proposal assigns the payment obligation to the educational institution, the costs could have broader implications for employers’ international hiring strategies, recruiting budgets, and workforce planning.

Employers should consider assessing workforce exposure and identify current employees and anticipated hires who may rely on pre-completion OPT, post-completion OPT, or STEM OPT extensions.  Employers should also review upcoming authorization dates for incumbent F-1 populations to identify employees who may require a STEM OPT extension in 2027 and beyond.

Broader Changes Affecting F-1 Students

The proposed OPT fees arise amid broader efforts by DHS to tighten oversight of international student programs. In July 2026, DHS finalized a separate rule replacing duration of status admission for F-1 and J-1 students with fixed admission periods and new procedures for extension of status. That rule has been blocked pending litigation and is not currently in effect.

The OPT fee proposal is a separate rulemaking and is not currently effective. If the proposal is finalized, given the scale of the proposed fees and their potential impact on students, educational institutions, and employers, litigation is also anticipated.

Gibney will continue to monitor the rulemaking and provide updates as developments occur.

The Dept. of State released the September 2026 Visa Bulletin, the final Visa Bulletin of Fiscal Year 2026. USCIS will continue to accept employment-based Adjustment of Status applications under the Final Action Dates chart for September. For employment-based immigrant visa categories, the Final Action Dates remain largely unchanged from August, with limited advancement occurring in the EB-4 category for Certain Religious Workers.

Of particular importance, the Dept. of State has also warned that continued high demand and visa number usage could cause certain employment-based categories to retrogress or become unavailable before the end of the fiscal year on September 30, 2026. This includes EB-1 India, EB-2, and EB-5 Unreserved categories.

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 July 1, 2023.
• EB-1 India will maintain a filing cutoff date of October 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 will continue to be unavailable through September 30, 2026.

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 September 1, 2024.
• EB-3 China will hold steady at January 1, 2022.
• EB-3 India will maintain a filing cutoff date of January 1, 2014.
• EB-3 Philippines will remain at August 1, 2023.

Other Workers

• Other Workers (including El Salvador, Guatemala and Honduras, and Mexico) will continue to remain at April 1, 2022.
• Philippines will remain at December 1, 2021.
• China will hold steady at May 1, 2019
• India will continue to maintain a filing cutoff date of January 1, 2014.

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 December 1, 2016 and India will continue to be unavailable through September 30, 2026. 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 September Visa Bulletin notes that most employment-based categories remain the same from August with limited advancement occurring in the EB-4 category for Certain Religious Workers. September 30th marks the end of Fiscal Year 2026. Visa number availability can become particularly volatile at the end of the fiscal year as the Dept. of State works to remain within annual and per-country numerical limits. Given the potential for unavailability or retrogression in several employment-based categories as articulated by the Dept. of State, Employers should not assume that a category listed as available on September 1 will necessarily remain available throughout the entire month and should pay careful attention to announcements by the Dept. of State and USCIS regarding visa unavailability or retrogression as FY 2026 comes to a close.

In particular, Indian nationals face two significant issues in September:

• EB-1 India remains at October 15, 2022, but the Dept. of State warns that the category could become unavailable before the end of the September
• EB-2 India is unavailable, preventing Adjustment of Status filings or final immigrant visa issuance or adjustment approval in this category in September

Accordingly, Employers with affected employees should continue maintaining underlying nonimmigrant status and work authorization where appropriate rather than relying solely on anticipated green card adjudication.

Additionally, the Dept. of State has cautioned that EB-2 and EB-5 unreserved categories may retrogress or become unavailable before the end of September, with availability likely resuming when the new fiscal year starts in October.

Employers are advised to work closely with immigration counsel to identify employees who may be impacted by changing filing opportunities, including potential retrogression and visa unavailability to ensure filing opportunities are not missed due to changing visa availability as the fiscal year ends.

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

On August 24, 2026, the Department of Homeland Security (DHS) posted a Notice of Proposed Rulemaking (NPRM) for public inspection set to formally publish in the Federal Register on August 25, 2026 (DHS Docket No. USCIS-2026-0298 / FR Doc. 2026-17324).

The proposed rule would establish a substantial new fee of $103,265 required at the time of filing for all new H-1B petitions that are subject to the annual H-1B lottery (H-1B cap), including those filed under the U.S. advanced degree exemption (Master’s cap).

Key Details of the Proposed Rule

• The Proposed Fee: USCIS is proposing an additional fee of $103,265 for cap-subject H-1B petitions.
• Who it Affects: The fee targets all H-1B cap-subject petitions, including both regular cap cases and those eligible for the advanced degree (master’s) exemption that are filed as part of the annual H-1B lottery. This includes both change-of-status and consular notification filings submitted by employers.
• Exemptions: Cap-exempt petitions—such as H-1B extensions, amendments, or filings submitted by cap-exempt organizations (like universities or non-profit research institutions)—will not be subject to the proposed fee.
• Stated Purpose: According to the agency, the revenue generated by this fee is intended to recover a portion of the federal government’s costs associated with administering the broader immigration system beyond the H-1B program across multiple agencies.

Background and Context

This move follows a series of ongoing legal battles regarding a previous $100,000 H-1B fee enacted via a presidential proclamation, which was struck down and blocked by federal courts (including a recent ruling by a Boston appeals court) for being an unauthorized tax. Unlike the previous temporary proclamation, this new measure is being pursued through the formal federal rulemaking process to make it permanent.

Next Steps in the Administrative Process

Publication in the Federal Register on August 25, 2026, opens a 30-day public comment period. Stakeholders, employers, industry groups, and affected individuals will have until late September 2026 to submit formal feedback via regulations.gov.  DHS must review and consider public feedback before issuing a Final Rule. Due to the required regulatory review steps, any final implementation date—along with potential transition rules—remains pending.

Current Status & What Employers Should Do Now

• NO IMMEDIATE ACTION REQUIRED FOR FILINGS: The proposed rule has not been approved and is not currently effective. Employers are not required to pay this fee for any current USCIS petitions or pending filings.

Gibney Recommendations

• Strategic Planning: If implemented in a final rule, the continued validity of that rule would need to be monitored as it is likely to be challenged through legal channels. The proposal for this new fee, as written, would dramatically alter corporate budgeting and talent acquisition strategies for foreign national employees requiring new H-1B cap sponsorship. Employers would be required to evaluate their reliance on the annual H-1B lottery process and review alternative immigration pathways (such as L-1, O-1, TN, E-3, or foreign office assignments) where feasible for talent sourced in the United States.
• Consider Participation in the Public Comment Period: Employers, trade associations, and corporate sponsors potentially impacted by this proposed fee increase may consider submitting public comments highlighting the practical and financial impacts on their workforce.
• Monitor Updates: Gibney’s Immigration Practice Group will closely track the progress of Docket No. USCIS-2026-0298, including public comments, subsequent agency actions, potential impact to immigration programs, and legal challenges that will likely be developing should the regulation become effective after the notice and comment period.

If you have questions regarding how this proposed rule may affect your organization’s hiring plans or existing immigration strategy, please contact your Gibney designated attorney or email us at info@gibney.com.

 

On August 5, 2026, U.S. Citizenship and Immigration Services (USCIS) issued Policy Alert PA-2026-05, announcing an immediate, sweeping shift in how adjudicators handle evidence, Requests for Evidence (RFEs), and Notices of Intent to Deny (NOIDs).

The new policy restores full discretionary authority to USCIS adjudicators to deny immigration benefit requests without first issuing an RFE or a NOID if required initial evidence is omitted at filing or if the record fails to establish eligibility. Additionally, USCIS is scaling back RFE response windows and eliminating the longstanding 14-day mailing extension for international notices.

Key Changes & Operational Impact

1. Reinstatement of Summary Denials (No RFE/NOID Safety Net)

USCIS officers now have full discretion to issue an outright denial for lack of initial evidence or failure to establish eligibility without first sending an RFE or NOID.  In the past, USCIS officers were generally instructed to issue an RFE or NOID to allow applicants and petitioners to cure evidentiary deficiencies before issuing a denial. USCIS explicitly stated this change aims to curb “frivolous or substantially incomplete filings” and “placeholder” applications submitted merely to secure ancillary benefits (e.g., employment authorization or travel parole).

2. Shorter RFE Response Deadlines

The new USCIS policy emphasizes that 12 weeks is a maximum period for RFE responses and not a mandatory standard. Officers have discretion to set shorter response deadlines depending on the nature of the missing evidence, up to a maximum of 12 weeks for RFEs and 30 days for NOIDs. Regulatory extensions are strictly prohibited.  Previously, USCIS officers routinely defaulted to the maximum standard 12-week response period for RFEs.

3. Partial RFE Responses Treated as Request for Final Decision

If an applicant or petitioner submits a response to an RFE or NOID that only partially addresses the requested items, USCIS will treat the submission as a formal request for an immediate decision based on the existing record, potentially triggering a prompt denial.  In the past, USCIS would often issue a second RFE if additional information was needed.

4. Elimination of 14-Day International Mailing Extension

In the past, applicants or petitioners located outside the U.S. received an additional 14 days of mailing time to respond to RFEs or NOIDs.  Under the new policy, this extension has been eliminated. All mailed notices—domestic or international—will now only receive the standard 3-day mailing add-on under 8 CFR 103.8(b).

When does the rule take effect?

The new policy took effect immediately upon publication on August 5, 2026.

Key Action Items & Best Practices for Employers & Applicants

• Eliminate “Placeholder” filings completely. Submitting initial applications without full supporting documentation (e.g., missing mandatory civil documents, petition fees, or required credentials) carries a severe risk of immediate summary denial.
• Implement rigid front-end audits for every petition/application prior to mailing to ensure 100% compliance with form instructions and evidentiary regulations.
• Prioritize RFE Response actions. Ensure RFE/NOID response packages are comprehensive and submitted well ahead of the specified deadline.

For specific questions, please contact your Gibney attorney or email info@gibney.com.

Amy McCoy

On August 3, 2026, the U.S. Department of State (DOS) published a Final Rule establishing a permanent Visa Bond Program. This rule formalizes and expands upon the 12-month pilot program launched in August 2025 pursuant to Executive Order 14159.

Under the permanent program, consular officers may require business and tourist visitor visa applicants (B-1/B-2) from designated high-overstay and high-risk countries to post a cash bond of $10,000, $15,000, or $20,000 as a condition of visa issuance.

Key Highlights & Requirements

• Applies strictly to B-1/B-2 nonimmigrant visitor visas. It does not apply to non-B nonimmigrant categories or travelers under the Visa Waiver Program (VWP).
• Consular officers are instructed to set a baseline bond of $15,000. Based on a totality-of-circumstances review (employment, income, contacts, travel purpose), the bond may be reduced to $10,000 if the applicant has limited financial means but sufficient funds to cover travel OR increased to $20,000 if additional financial incentive is deemed necessary to ensure timely departure.
• The bond limits are set to adjust for inflation every seven (7) years as of October 1, 2027.
• Applies to foreign nationals from countries identified by DOS as having high overstay rates, insufficient information sharing, criminal/identity records, or travel document security. The country list will be published and maintained on travel.state.gov. Currently the 50 countries named in the 2025 pilot program will be subject.
• Bonds must be paid electronically in U.S. dollars via a dedicated U.S. payment platform.
• Includes strict departure requirements. To fulfill bond conditions and qualify for cancellation/refund, the traveler must: comply with all terms of B-1/B-2 status (including strictly avoiding unauthorized employment); arrive and depart exclusively via commercial air from a designated U.S. port of entry or CBP Preclearance facility; and depart on or before the expiration of their authorized stay granted by Customs and Border Protection (CBP).

Practical Implications for Employers and International Travelers

1. Increased Upfront Costs: Companies sponsoring foreign business partners, consultants, or employees traveling on B-1 visas from covered countries must prepare for substantial upfront financial outlays ($10,000–$20,000 per traveler) in addition to standard Machine Readable Visa (MRV) fees.
2. Procedural Delays: Initial visa applications for covered nationals will trigger a formal refusal under INA § 221(g) at the interview stage. The refusal will only be overcome once funds settle through the payment platform.
3. Port of Entry/Departure Restrictions: Bonded travelers must enter and exit the U.S. using commercial airlines to ensure automatic exit verification via CBP systems.
4. Strict Compliance Monitoring: Changing status in the U.S. or overstaying by risks a complete forfeiture of the cash bond.

 

How We Can Help

Our immigration team is actively monitoring country designations on travel.state.gov and assisting corporate clients with strategy surrounding short-term business visits. If you have questions regarding upcoming business travel, alternative visa options, or bond processing procedures, please contact your Gibney attorney or email info@gibney.com.

 

Amy McCoy

The Dept. of State released the August 2026 Visa Bulletin and USCIS has confirmed that they will continue to accept employment-based Adjustment of Status applications under the Final Action Dates chart for August. Limited advancement is noted in several employment-based categories with potential unavailability and retrogression possible for EB-1 India and EB-2, as further detailed below:

• EB-1 China will advance by one month to July 1, 2023.
• EB-3 China will advance by more than one week to January 1, 2021.
• EB-3 Worldwide will advance by one month to September 1, 2024.

The Dept. of State notes that EB-1 India may become unavailable in the coming weeks and EB-2 may retrogress or become unavailable in the coming months due to increased demand and steady immigrant visa number usage.

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 advance by one month to July 1, 2023.
• EB-1 India will maintain a filing cutoff date of October 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 will continue to be unavailable through September 30, 2026.

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

• EB-3 Worldwide (including El Salvador, Guatemala and Honduras, and Mexico) will advance by one month to September 1, 2024.
• EB-3 China will advance by more than one week to January 1, 2022.
• EB-3 India will maintain a filing cutoff date of January 1, 2014.
• EB-3 Philippines will remain at August 1, 2023.

Other Workers

• Other Workers (including El Salvador, Guatemala and Honduras, and Mexico) will advance by one month to April 1, 2022.
• Philippines will remain at December 1, 2021.
• China will advance by one month to May 1, 2019
• India will continue to maintain a filing cutoff date of January 1, 2014.

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 December 1, 2016 and India will continue to be unavailable through September 30, 2026. 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 August Visa Bulletin reflects limited advancement in several employment-based immigrant visa categories. However, the most significant takeaway for employers is the continued strain on employment-based visa availability as Fiscal Year 2026 draws to a close on September 30, 2026. With only two months remaining in the fiscal year, employers should anticipate continued fluctuations in visa availability and should work closely with immigration counsel to identify employees who may be impacted by changing filing opportunities, including potential retrogression and visa unavailability.

While certain employment-based categories have noted limited forward movement, the Dept. of State continues to caution that visa demand and immigrant visa usage remains high. Most notably, EB-2 India remains unavailable and the Dept. of State warns that EB-1 India could also become unavailable in the coming weeks if applicant demand continues. The Dept. of State further notes that increased demand in the EB-2 category could require retrogression or temporary unavailability in the coming months.

Proactive planning, early preparation, and ongoing monitoring remain the most effective strategies for minimizing disruptions to workforce planning and maximizing permanent residence opportunities for sponsored employees. Employers are also advised to:

• Identify employees with current or near-current priority dates and prepare adjustment of status filings in advance
• Monitor Indian and Chinese employees carefully due to continuing visa backlogs and possible additional retrogression and unavailability
• Maintain underlying nonimmigrant status whenever possible while adjustment of status applications remain pending
• Review dependent children approaching 21 years of age for potential Child Status Protection Act considerations
• Continue initiating permanent residence sponsorship early despite visa bulletin volatility

Employers should coordinate regularly with immigration counsel to ensure filing opportunities are not missed due to changing visa availability as the fiscal year ends.

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

Inez Macedonio

On July 15, 2026, the U.S. District Court for the District of Rhode Island denied the federal government’s request to stay the court’s earlier ruling in Dorcas International Institute of Rhode Island v. USCIS, pending its appeal. This means that USCIS must continue to process and adjudicate immigration applications and petitions from the 39 affected countries while the government’s appeal moves forward.

Prior Ruling and USCIS Statement

On June 5, 2026, the court held that USCIS exceeded its statutory authority by implementing policies that effectively halted the adjudication of immigration benefits for nationals of designated “travel ban” countries. The court found that these policies violated both the Immigration and Nationality Act (INA) and the Administrative Procedure Act (APA).

Specifically, the court vacated policies that suspended adjudication of many applications and petitions filed on behalf of 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.

On June 12, 2026, after the court directed that USCIS detail the concrete steps it had taken to comply with the court order, USCIS announced that the policy memoranda placing an adjudicatory hold on cases from the affected countries would be treated as if they are no longer in effect, pending further litigation.

Latest Update: Stay Denied

On June 12, the Department of Justice filed an appeal and requested a stay to halt the court’s June 5 order during the appellate process. By denying this stay on July 15, 2026, the court ensures that the original ruling lifting the hold on adjudications, remains fully active and that USCIS is legally required to continue adjudication of affected cases while the higher court reviews the case.

The processing mandate applies to:

• Adjustment of status applications
• Nonimmigrant and Immigrant Visa Petitions
• Employment authorization requests
• Naturalization applications
• Certain asylum-related benefits.

Gibney practitioners are pleased to report resumption of case processing, including approvals, for affected clients.

Impact on Employers and Next Steps

Employers should review pending petitions or applications for employees from affected countries.  As USCIS works through backlogged files, employers should expect to receive final adjudications and should also be prepared to receive potential Requests for Evidence (RFEs), interview notices and/or biometric appointments.

Aisling Ryan