Category: Alerts

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

DHS has finalized a rule replacing “duration of status” (D/S) admission for F-1 students, J-1 exchange visitors, and I nonimmigrant representatives of foreign media with a fixed period of admission. The new rule will require these nonimmigrants to file for an extension of stay (EOS) with USCIS (or depart and seek readmission) if they need to remain beyond that fixed date. The rule was published on July 17, 2026 and will take effect on September 15, 2026.

DHS reports it received nearly 22,000 public comments on the September 2025 proposal, the vast majority of which are addressed at length in the final rule’s preamble. Despite the volume and substance of opposition comments, DHS adopted the bulk of the proposed changes as originally drafted, with some modifications discussed below.

Key Changes Impacting the F-1, J-1, and I Visa Classifications

• Fixed admission period for F-1 and J-1 visa holders (and dependents): Admission and any subsequent extension will be capped at the length of the program listed on the Form I-20 or DS-2019, not to exceed 4 years.
• Fixed admission period for I nonimmigrants: Admission will be capped at 240 days (with a shorter 90-day period continuing to apply to most representatives of media organizations presenting a PRC passport, excluding Hong Kong/Macau SAR passport holders).
• EOS requirement: Anyone needing more time must file an extension of status (EOS) application with USCIS before the fixed period expires (or depart and seek readmission).
• Reduced departure/grace period for F-1 students: The period for F-1 students to prepare to depart after completing a program (or authorized post-completion practical training) is cut from 60 to 30 days, aligning F-1 with the J-1 grace period, as proposed.  F-1 students eligible for post-completion OPT must also file an application for an Employment Authorization Document (EAD) within 30 days (rather than 60 days) after completion of their program or program end date.
• Restrictions on changing educational objective and school transfers:
  • F-1 students at any level below the graduate degree level must complete their first academic year of a program of study at the school that initially issued their Form I-20 before being eligible to change their educational objective or transfer to a new school absent a SEVP-authorized exception for extenuating circumstances.
  • F-1 students at the graduate level or above are barred from changing educational objectives at any point during their program, and are barred from transferring schools during their program absent an SEVP-authorized exception for extenuating circumstances.
• Same-or-lower-level enrollment barred: An individual who completes a program at one educational level generally may only begin a new program as an F-1 student at a higher level – not the same or a lower level. This change effectively eliminates the option for individuals to enroll in a second graduate degree program that provides immediate work authorization, generally known as Day 1 CPT. DHS is expected to provide additional guidance on how it will define educational levels and determine whether a student’s program of study reflects upward academic progression.
• Unlawful presence exposure: Once a fixed admission period expires without an approved extension, the individual is out of status and begins accruing unlawful presence for purposes of the statutory 3- and 10-year inadmissibility bars, a marked change from the “D/S” framework, under which unlawful presence only began accruing once an immigration judge formally found a status violation.
• Biometrics: USCIS may require biometrics in connection with EOS applications for F, J, and I nonimmigrants.

Impact on Existing F-1/J-1 Populations and Transition Provisions

Individuals admitted for D/S who are physically present in the United States on September 15, 2026, the rule’s effective date, will convert to a fixed admission period, with an end date to be the later of the program end date on the individual’s current I-20 or DS-2019, or the expiration date of the individual’s EAD, but capped at no more than 4 years from the rule’s effective date, regardless of program length.  The grace period for this transition group is preserved at legacy length, which is 60 days for F-1 non-immigrants.  Individuals who leave the U.S. and reenter on or after September 15, 2026, will be admitted with a new Form I-94 reflecting a fixed admission date.

Under the transition provisions, individuals with filed OPT or STEM OPT EAD applications that are pending on September 15, 2026 or are filed on or before March 18, 2027 will not be required to file an EOS application. (DHS reserves discretion to extend this transition period through notification in the Federal Register).

Automatic EAD Extension Provisions

The regulation preserves the 180-day automatic extension of employment authorization for F-1 students who timely file for a STEM OPT extension as well the automatic cap-gap extension for F-1 students with a timely filed H-1B cap petition for change of status, through April 1 of the fiscal year.

The rule also provides for automatic extension of work authorization during a pending EOS for F-1 students holding employment authorization for curricular practical training (CPT), on-campus employment or due to economic hardship.  The auto-extension runs up to 240 days or the end date of any Federal Register notice suspending the relevant requirements, whichever is earlier.

J-1 and I nonimmigrants who are employment-authorized incident to status will continue to benefit from the 240-day auto extension if their status expires while a timely EOS application is pending. J-2 dependents, who must hold an EAD rather than being authorized incident to status, do not receive this benefit once their EAD expires.

New Version of Forms I-539/I-539A, I-765, I-20, and I-17 or Successor Forms Expected

DHS is expected to revise Form I-539 (Application to Extend/Change Nonimmigrant Status) and its companion Form I-539A, Form I-765 Application for Employment Authorization, as well as ICE Forms I-20 and I-17. SEVP/SEVIS system updates needed to support the new fixed-admission and EOS framework are also expected.

Practical Implications for Employers, Schools, and Foreign National Employees

Our September 2025 alert examined how this shift would increase filings, processing backlogs, and administrative burden. The final rule confirms and, in some respects, sharpens that picture:

• Institutions, program sponsors, and employers relying on F-1 OPT/STEM OPT workers, J-1 researchers or physicians, or I nonimmigrant media staff will need to track fixed admission-period end dates the same way they track other nonimmigrant status expirations, and build in lead time for EOS filings.
• Unlawful presence risk is now immediate upon expiration, rather than contingent on a judge’s finding, considerably raising the stakes of a missed or late EOS filing compared to the D/S regime.
• The bar on changing educational objectives or transferring schools at the graduate level will limit flexibility for J-1 and F-1 researchers whose programs evolve, absent a qualifying SEVP exception.

Gibney will continue to monitor developments and provide updates as additional information becomes available including detailed FAQs for existing clients.   Please contact your Gibney attorney to discuss how this final rule may affect current or upcoming F, J, or I nonimmigrant filings, or transition planning for individuals currently in D/S status.

Jennifer Davis

United States Citizenship and Immigration Services (USCIS) has reached the Fiscal Year (FY) 2027 H-1B cap. On July 17, 2026, USCIS announced that it received enough petitions to reach the mandated 65,000 H-1B visa regular cap and the 20,000 visas for advanced degree holders.

WHAT EMPLOYERS CAN EXPECT

With this development, USCIS will not conduct a second round of the H-1B cap lottery.  Employers may expect that over the next few days, USCIS will update non-selected registrants’ online accounts to change the status of pending FY 2027 registrations from “Submitted” to “Not Selected.”

PETITIONS NOT SUBJECT TO THE H-1B CAP

USCIS will continue to accept and process H-1B petitions that are not subject to the cap. These include filings for extensions of status, amended petitions, changes of employer, concurrent employment for existing H-1B workers, and petitions filed by organizations that are cap-exempt.

If you have any questions about this alert, please contact your Gibney representative or email info@gibney.com.

Houman Afshar

On June 30, 2026, the U.S. Supreme Court issued a landmark 6–3 ruling in Trump v. Barbara, striking down Executive Order 14160. The Court reaffirmed that the Fourteenth Amendment guarantees automatic birthright citizenship to children born in the United States, regardless of their parents’ immigration or visa status. This historic decision preserves stability for employers and foreign workers.

Understanding Birthright Citizenship

The principle of birthright citizenship is that anyone born on U.S. soil is an American citizen at birth. It is protected by the Fourteenth Amendment, adopted in 1868.

What This Means for International Employees

• Rights Preserved: Children born in the U.S. to temporary visa holders will continue to remain automatic U.S. citizens.
• Visa Timelines: Employees’ personal visa status, green card sponsorship timeline, and work authorization are not impacted.

Key Takeaways for Employers

• Workforce Stability: International workers holding employment visas (ex. H-1B, L-1, O-1 and TN visas) will have workforce stability.
• Compliance: There are no changes to Form I-9, E-Verify, or the employment eligibility verification workflows.
• Parental Status: The ruling has no impact on/grants no changes to the legal status or green cards policies relating to parents themselves.
• Global Mobility: Employers should ensure global mobility programs properly log U.S.-born children as U.S. citizens where applicable.

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

Amy McCoy

The Department of Homeland Security (DHS) finalized a rule on June 29, 2026, enforcing registration and fingerprinting mandates for noncitizens remaining in the U.S. for 30 days or longer. Driven by Executive Order 14159, the final rule adopts a previous Interim Final Rule (IFR) and introduces updated registration procedures.

Key Provisions of the Final Rule

• Registration Method: Foreign nationals can continue using Form G-325R (Biographic Information) to fulfill this requirement.
• Proof of Registration: Online registrants will receive a downloadable “USCIS Proof of G-325R Registration” receipt and registered noncitizens age 18 and older are required to carry this physical proof of registration at all times.
• Children Under Age 14: Parents and legal guardians must register children under the age of 14.
• Re-Registration for Children Turning 14: Within 30 days of their 14^th birthday, children must personally apply for re-registration and provide fingerprints.
• Trusted Traveler Status: Active membership in Global Entry, NEXUS, SENTRI, or FAST officially qualifies as valid proof of registration.
• Frequent Travelers: Registration applies independently to every separate U.S. visit that lasts 30 days or longer.

When does the rule take effect?

The final rule took effect immediately upon publication on June 29, 2026

Penalties for Violations

Failure to register or carry proof can result in civil and criminal penalties, including fines, misdemeanor charges, or jail time.

Employer Considerations

While this final rule could signal a period of aggressive workplace immigration enforcement, it does not alter standard Form I-9 employment eligibility verification requirements. The rule primarily targets individuals who entered the U.S. without inspection.

• Exempt Employees: Most authorized foreign national employees are already considered registered and do not need to file Form G-325R if they are:
  • Lawful Permanent Residents (Green Card holders)
  • Noncitizens with valid Employment Authorization Documents (EADs)
  • Work visa holders (such as H-1B, L-1, or TN) with an unexpired Form I-94
• Form I-9 Compliance: Completing Form G-325R registration does not grant employment authorization. Employers should continue to verify eligibility using the standard accepted Form I-9 List documents
• Increased Scrutiny: Employers may see an increased likelihood of workplace inspections. Employers should expect heightened scrutiny regarding paperwork compliance

Plan Ahead

• Review Form I-9 files for accuracy and make corrections.
• Monitor expiration dates for foreign national employees to ensure timely reverification.

What to Expect Next

DHS is accepting public comments on the final rule through August 28, 2026.

Amy McCoy