June 5, 2025

New Presidential Proclamation Restricts Entry of Certain Foreign Nationals (Effective Monday, June 9, 2025)

On June 4, 2025, President Trump issued a new proclamation significantly restricting the entry of foreign nationals from 12 countries and partially limiting entry from an additional 7 countries, citing national security and public safety concerns. This action is based on an assessment of countries’ screening and vetting capabilities, information sharing, and risk factors including terrorist presence and visa overstay rates.

Key Details

  • Full Entry Restrictions: Nationals from Afghanistan, Burma (Myanmar), Chad, Republic of the Congo, Equatorial Guinea, Eritrea, Haiti, Iran, Libya, Somalia, Sudan, and Yemen face a full suspension of entry.
  • Partial Entry Restrictions: Entry is partially restricted for nationals from Burundi, Cuba, Laos, Sierra Leone, Togo, Turkmenistan, and Venezuela, with restrictions applying to individuals seeking to enter the U.S. as immigrants or pursuant to B‑1, B-2, B-1/B-2, F, M, and J visas.
  • Effective Date: The restrictions take effect at 12:01 a.m. EDT on Monday, June 9, 2025.
  • Exceptions at a Glance: The proclamation includes exceptions for U.S. lawful permanent residents, dual citizens (who travel on their non-subject passport), existing visa holders, certain visa categories, and individuals whose entry serves U.S. national interests, among others.

Exceptions – A Closer Look

The scope of the proclamation applies only to individual of the listed countries who are currently outside the U.S. and without a valid visa.  As such, we understand that individuals who currently hold valid visas are not subject. Additionally, the proclamation expressly includes several important exemptions. The suspension and limitation on entry will not apply to:

  • US lawful permanent residents (Green Card holders);
  • Dual nationals of a subject country when the individual is traveling on a passport issued by a non-subject country (i.e., an individual with dual Canadian and Iranian citizenship who seeks to enter using his/her Canadian passport);
  • Foreign nationals and their dependents travelling with a government-related nonimmigrant visa, including A, C, G, NATO categories.
  • Athletes or member of an athletic team, including coaches and support staff, and their dependents travelling to the U.S. for the World Cup, Olympics, or other major sporting event;
  • Immediate family immigrant visas with clear and convincing evidence of identity and family relationship;
  • Adoptees;
  • Afghan Special Immigrant Visas;
  • Special Immigrant Visas for United States Government employees; and
  • Immigrant visas for ethnic and religious minorities facing persecution in Iran.

Exceptions to the travel ban may be made for individuals whose travel to the U.S. would advance a critical national interest involving the U.S. Department of Justice, to be determined by the Attorney General.  Additionally, exceptions will be made on a case-by-case basis for individuals whose travel would serve the U.S. national interest as determined by Secretary of State in coordination with the Secretary of Homeland Security.

Further, the proclamation states that it will not apply to individuals who have been granted asylum, refugees who have already been admitted to the U.S. or individuals who have been granted withholding of removal or protection under the Convention Against Torture (CAT).  The proclamation also expressly states that it should not be construed to “limit the ability of an individual to seek asylum, refugee status, withholding of removal, or protection under the CAT.”

Background

Bans on travel to the U.S. from nationals of certain countries by Executive Order became a hallmark of the first Trump administration’s immigration policy. Early into President’s Trumps first term, travel bans for individuals from countries including Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen were announced with more countries added in the following months. Multiple injunctions were filed against the bans, but ultimately the Supreme Court determined in June 2018 that the President had lawfully exercised the broad discretion granted to him by Congress to suspend the entry of foreign nationals to the U.S. for purposes of national security.

What Employers Need to Know

This proclamation has significant implications for individuals from the listed countries seeking to enter the U.S., as well as for businesses and educational institutions with ties to these regions. Affected individuals and entities should seek immediate legal counsel to understand the specific impact on their immigration status, travel plans, and operations.

Further, we anticipate that there may be additional scrutiny and improper exclusion from the U.S. even in those cases that facially qualify for exemptions.

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

May 28, 2025

Department of State Temporarily Suspends Visa Interviews for Foreign Students & Exchange Visitors

On May 27, 2025, the Department of State issued a cable instructing U.S. Embassies and Consulates to pause scheduling new visa appointments for foreign nationals seeking to obtain student and exchange visitor visas (F, M, and J visa classifications).  The pause on visa appointments for F, M, and J visas is expected to be temporary, while the Department undertakes review of existing processes and issues updated guidance on expanded social media vetting for applicants in these visa categories. As of now, a timeline for when visa appointment scheduling will resume for these visa classifications has not been announced.

Background

The Department of State has confirmed that it is reviewing screening and vetting procedures for the student and exchange visitor visa classifications, with revised guidance to follow on new procedures including additional vetting of applicants’ social media. The cable directive implements the Administration’s Executive Orders on Combatting Anti-Semitism, Additional Measures to Combat Anti-Semitism and Protecting the United States from Foreign Terrorists and Other National Security and Public Safety Threats, and is consistent with a similar directive on social media screening issued by the Department of Homeland Security in early April.

The requirement to provide social media information as part of the visa application process is not new.  Visa applicants across the spectrum of temporary visa classifications have been required since 2019 to provide information related to social media accounts in the DS-160 online Nonimmigrant Visa Application that applicants submit electronically to the Department of State as part of the visa application process.  However, over the past few months there has been increased scrutiny of social media accounts for visa applicants, individuals going through Customs & Border Protection (CBP) when seeking to enter the U.S., and individuals already in the U.S. in temporary visa status, and particularly F-1 students.

What Students and Employers Should Know

The pause on visa appointments for student and exchange visitor visas and the expansion of social media screening is expected to cause significant delays in visa processing, which may disrupt students’ plans to enroll in U.S. universities for the summer and fall terms. The Department of State has not released the full cable. It is currently unclear whether this pause impacts only individuals required to make an interview appointment, or also extends to individuals eligible for the visa interview waiver. Foreign nationals currently in the U.S. in F, M, or J status with an expired visa stamp should contact immigration counsel and their school’s Designated School Official (DSO) for guidance before departing the U.S.

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

May 17, 2025

Immigration By the Numbers: Key Stats on FY2026 H-1B Cap Lottery and Next Steps

With the first round of the H-1B cap lottery completed in late March, the United States Citizenship and Immigration Service (USCIS) has now released statistics for this year’s H-1B cap registrations and selections.

USCIS reported that it received eligible registrations for 336,153 unique beneficiaries in the Fiscal Year (FY) 2026 H-1B cap and selected 118,660 unique beneficiaries. This represents a selection rate of approximately 35.3%.

The number of eligible registrations for FY 2026 dropped by a noteworthy 26.9%, with 343,981 for FY 2026 compared to 470,342 for FY 2025.

USCIS has not announced whether there will be a second lottery, as this depends on the number of H-1B cap petitions received during the initial filing window, which is set toclose on June 30, 2025.

Key Takeaways from this H-1B Cap Season

This is the second year that USCIS has utilized a beneficiary-centric selection process implemented pursuant to the Improving the H-1B Registration Selection Process and Program Integrity rule, whereby each unique beneficiary is entered into the selection process once, regardless of how many registrations have been submitted on their behalf. This measure was enacted as an attempt to combat fraud in the process that was seen in prior years when multiple employers would jointly file registrations for the same beneficiary to gain an unfair advantage in selection rates. This rule continues to have a notable impact on the H-1B cap registration process. The number of eligible registrations for FY 2026 dropped by  26.9%, with 343,981 for FY 2026 compared to 470,342 for FY 2025.  There was an average of 1.01 registrations per beneficiary in FY 2026 as compared to 1.06 for FY 2025.

The number of unique employers submitting registrations in FY 2026 (approximately 57,600) was comparable to the number in FY 2025 (approximately 52,700). The increase in the number of unique employers may be partially due to the H-1B Modernization Rule implemented in January 2025 that facilitates access to H-1B visas for entrepreneurs, startups, and businesses owned by H-1B cap beneficiaries.

Background

The H-1B program allows U.S. employers to temporarily employ foreign workers in occupations that require the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent.  Currently there is an annual numerical limit of 65,000 visas each fiscal year (known as the “Regular cap”). There are an additional 20,000 H-1B visas available for beneficiaries with a master’s degree or higher from a U.S. institution of higher education (known as the “Master’s cap”). The Regular cap is further reduced by carve-outs for the H-1B1 visa for nationals of Chile and Singapore under the provisions of free trade agreements between the U.S. and each country, leaving the actual number of Regular cap H-1B visas that are available at 58,200.

Each year, USCIS selects more registrations than there are visa numbers available based on its projections of how many selected employers will file petitions and receive USCIS approval.

The current limit on H-1B visas was set in 1990 when the H-1B category was created by Congress. The American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) and the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) made significant changes to policy and procedures for the H-1B classification, including providing temporary increases to the numerical limits. Under ACWIA, the number of available H-1B visas increased to 115,000 in FY 1999 and 2000. AC21 further increased the number of available visas to 195,000 for FY 2001, FY 2002, and FY 2003. In FY 2004, the H-1B cap reverted to 65,000 visas per fiscal year and remains at that level. Except for the special allocation of visas for the Master’s cap, established in 2006, there have been no increases to the number of H-1B visas that are available each year since the sunset of the ACWIA and AC21 provisions.

What Employers Need to Know & H-1B Visa Alternatives

The H-1B program, which is based on numerical limits set over 30 years ago, still remains terribly short of meeting the needs of the U.S. economy in the global competition for talent, particularly in STEM fields.

Due to the limited numbers of H-1B visas available, U.S. employers are driven to leverage alternatives to the H-1B classification in order to retain talent in their workforce.  Employers should work with legal counsel on strategizing any available alternatives for those not selected in the H-1B cap lottery.

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

May 14, 2025

June 2025 Visa Bulletin Released: Continued Slow Progression in Many Categories May Impact Employers

The Department of State released the June 2025 Visa Bulletin and USCIS has confirmed they will accept the Final Action Dates chart for employment-based Adjustment of Status applications. The Final Action Dates chart notes modest advancement for EB-2 and EB-3 Worldwide and China as further detailed below. All other employment-based categories will continue to remain the same for June pursuant to the Final Action Dates chart.

  • EB-2 China will advance by two months to December 1, 2020
  • EB-2 Worldwide will advance by approximately four months to October 15, 2023
  • EB-3 China will advance by three weeks to November 22, 2020
  • EB-3 Worldwide will advance by five weeks to February 8, 2023

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) remains current.
  • EB-1 China: Final Action Dates will maintain a filing cutoff date of November 22,
  • EB-1 India: Final Action Dates will maintain a filing cutoff date of February 15, 2022.

 EB-2, Second Preference Category

  • EB-2 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) will advance by approximately four months to October 15, 2023.
  • China: Final Action Dates will advance by two months to December 1, 2020.
  • India:  Final Action dates will remain at January 1, 2013.

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

  • EB-3 Worldwide (including El Salvador, Guatemala and Honduras, Mexico and Philippines) will advance by five weeks to February 8, 2023.
  • China: Final Action Dates will advance by three weeks to November 22, 2020.
  • India: Final Action Dates will remain at April 15, 2013.

Other Workers

  • Worldwide (including El Salvador, Guatemala, Honduras, Mexico and Philippines) will advance by one month to June 22, 2021.
  • China will remain at April 1, 2017.
  • India will maintain a cut-off date of April 15, 2013.

EB-5: Fifth Preference Category (Immigrant Investors)

  • For the EB-5 Unreserved categories (C5, T5, I5, and R5), India will hold steady at May 1, 2019 and China will maintain a cut-off date of January 22, 2014. All other countries will remain current.
  • The EB-5 “Set-Aside” categories (Rural, High Unemployment, and Infrastructure) will remain current.

Individuals with a priority date that is before the published cut-off date may file an Adjustment of Status application based on the dates outlined above.

WHAT SHOULD EMPLOYERS EXPECT?  

As noted in the June Visa Bulletin, modest advancement is observed under Final Action Dates for EB-2 and EB-3 Worldwide and China by approximately two weeks to four months, depending on the employment-based category and country.

As stagnation continues to persist for many categories, Employers may wish to consider alternative visa options or strategies to maintain work authorization and retain talent while awaiting green card eligibility. Employers may also wish to strategically file I-140’s even when priority dates are far from becoming current to facilitate job security and retention. Further, individuals with current priority dates should submit Adjustment of Status applications as soon as possible as sudden changes to visa availability may occur late in the fiscal year (August-September) impacting eligibility to file.

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

April 11, 2025

Update: New Regulation on Alien Registration Requirement Takes Effect on April 11 After Federal Judge Denies Request for Preliminary Injunction

The U.S. Department of Homeland Security (DHS) Interim Final Rule (IFR) requiring non-citizens who remain in the U.S. for 30 days or more — and were not previously registered — to register and carry proof of their registration with them at all times, takes effect on April 11, 2025.

A lawsuit challenging the rule was filed on March 31, 2025 in federal court.  On April 10, 2025, a federal judge denied a request for a preliminary injunction and stay of the effective date of the rule, allowing the Administration to move forward with the requirement.

Individuals Required to Register

  • Non-citizens present in the U.S. for 30 days or more as of April 11, 2025 without registration evidence are required to register immediately. This includes Canadian nationals who enter the United States for business or tourism at a land port of entry, were not issued a Form I-94, and remain in the United States for 30 days or more.
  • Non-citizens entering the U.S. on or after April 11, 2025 without registration evidence are required to register within 30 days of arrival.
  • Non-citizen children turning 14 in the U.S. (even if previously registered) are required to re-register and submit fingerprints within 30 days of their 14th This includes children in temporary visa status (e.g. H-4, L-2), and children who are lawful permanent residents.
  • Parents or guardians of non-citizen children under 14 are required to register their children, if not previously registered, if they remain in the U.S. for 30 days or longer.

Individuals with questions on whether they are required to register or re-register should contact immigration counsel.

Individuals Considered Already Registered

Non-citizens who have already registered include:

  • Individuals issued immigrant or nonimmigrant visas before their last date of arrival;
  • Individuals admitted to the United States as nonimmigrants who were issued Form I-94 or I-94W (paper or electronic);
  • Lawful permanent residents;
  • Individuals issued an employment authorization document;
  • Individuals paroled into the United States;
  • Individuals placed into removal proceedings;
  • Individuals who have applied for lawful permanent residence using Forms I-485, I-687, I-691, I-698, I-700, and provided fingerprints, even if the applications were denied; and
  • Individuals issued Border Crossing Cards.

Individuals Exempted from the Registration Requirement

Exempted from the registration requirement are diplomats and officials in A and G visa status, and certain American Indians born in Canada.

How to Register

Individuals required to register must create a myUSCIS account and submit Form G-325R Biographic Information (Registration) which has been made available for online filing.  Submission of the G-325R Registration in myUSCIS initiates the process for scheduling a biometric appointment at an Application Support Center.  Upon completion of biometrics, “Proof of Alien Registration” with a unique identifier will be created and posted to the applicant’s myUSCIS account.

For individuals who are required to register but for whom fingerprinting has been waived, the “Proof of Alien Registration” will be created upon submission of Form G-325R.

In addition to biographic data for the applicant and their family members (spouse and parents), Form G-325R solicits addresses in the past 5 years, activities since the most recent entry, as well as prospective activities the individual expects to engage in until the expected departure.

At this time, no fee is required for submission of Form G-325R.  However, DHS has solicited public comment on implementing a biometric services fee of $30 per registrant in the future.

Background

Existing immigration law requires non-citizens who remain in the U.S. for 30 days or longer to register, submit fingerprints (unless waived), carry evidence of registration at all times, and notify DHS of a change in address within 10 days of moving.  Historically, these provisions – which originate in the Smith Act of 1940 – have not been enforced, with limited exceptions.

Consistent with the new Administration’s policy of extreme vetting and immigration enforcement to the full extent of the law, the IFR implements a specific mandate from Executive Order 14159, Protecting the American People Against Invasion, of January 20, 2025, which directed the agencies to announce, publicize and enforce the legal obligation of non-citizens to register.

Registration and fingerprinting: All non-citizens age 14 or older who remain in the U.S. for 30 days or longer are required to register and fingerprint (unless waived).  Children under the age of 14 must be registered by their parents/guardians.  Upon turning 14 years of age, children (regardless of whether they were previously registered or unregistered) must register and be fingerprinted within 30 days of turning 14.

Carrying evidence of registration: All non-citizens aged 18 or older must carry evidence of registration at all times.  Evidence of registration includes:

  • Form I-94, Arrival-Departure Record – non-citizens admitted as nonimmigrants; noncitizens paroled into the US under 212(d)(5) of the INA; non-citizens who claimed to have entered prior to July 1, 1924; and non-citizens granted permission to depart without the institution of deportation proceedings;
  • Form I-551, Permanent Resident Card;
  • Form I-766, Employment Authorization Document (EAD);
  • Valid, unexpired nonimmigrant DHS admission or parole stamp in a foreign passport;
  • Form I-95, Crewmen’s Landing Permit; Form I-184, Alien Crewman Landing Permit and Identification Card;
  • Form I-185, Nonresident Alien Canadian Border Crossing Card;
  • Form I-186, Nonresident Alien Mexican Border Crossing Card;
  • Form I-221, Order to Show Cause and Notice of Hearing;
  • Form I-221S, Order to Show Cause, Notice of Hearing, and Warrant of Arrent of Aliens;
  • Form I-862, Notice to Appear, for those noncitizens against whom removal proceedings are being instituted;
  • Form I-863, Notice of Referral to Immigration Judge, for those noncitizens against whom removal proceedings are being instituted;
  • “Proof of Alien Registration” issued upon submission of Form G-325R and biometrics.

Change of address:   All non-citizens must report their change in address to DHS within 10 days of moving.

Penalties

An individual who willfully fails or refuses to apply to register or be fingerprinted may be fined up to $5000 or imprisoned for up to six months, or both. Non-compliance with the requirement to carry proof of registration at all times and to report a change in address is punishable by a fine of up to $5,000 or imprisonment of up to 30 days, or both. In addition, an individual who fails to comply with the change-of-address reporting requirement may be deportable unless the failure was not willful or was reasonably excusable.

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

April 7, 2025

What Student Visa Holders and Employers Need to Know About Recent Student Visa Rescissions and Increased Scrutiny

The Department of State (DOS) has recently increased scrutiny of existing student visa holders and those requesting new student visas at U.S. consulates abroad.

Some F-1 visas and SEVIS records have been rescinded or closed

Secretary of State, Marco Rubio, announced on March 28, 2025 that DOS had rescinded more than 300 F-1 student visas for conduct deemed to have adverse foreign policy consequences or for criminal activity.  Since then, the NAFSA Association of International Educators reports numerous student record terminations in the Student and Exchange Visitor Information System (“SEVIS”) for activities related to campus protests and social media activity deemed contrary to US foreign policy, and for students identified in criminal record checks.

In the event that a student’s visa is revoked, DOS is required to notify the student via the email address used during the visa application process. The student’s Designed School Officer (DSO) is also responsible for notifying the student that their status has been terminated in SEVIS. Students who have received SEVIS termination notifications or DOS notifications of visa revocation should preserve all records, including notifications of termination, academic enrollment records, I-94 record and screenshots from their SEVIS record, and contact immigration counsel to evaluate legal options.

U.S. consulates have received revised guidance for new F, M, and J visa applicants

A cable guidance from Secretary of State, Marco, Rubio advises consular officers to conduct enhanced screening of student visa applicants. Officers are directed to determine if students “intend to travel to the United States to engage in unlawful activities” or activities that are different from what the student claims in their application

Furthermore, consular officers are directed to refer student visa applicants for social media review if:

  • The officer has reason to believe that the student openly advocated for a designated foreign terrorist organization;
  • The student was previously in student status in the U.S. between October 7, 2023 and August 31, 2024; OR
  • The student’s prior SEVIS record was terminated between October 7, 2023 and the present.

What Employers Need to Know

F-1 visa revocations and SEVIS record terminations may have different legal implications for the impacted students’ work authorization (CPT, OPT, STEM OPT).  In the event that an employee in F-1 status notifies their employer that their SEVIS record has been terminated or F-1 visa has been revoked, the employer should work with legal counsel to evaluate options.

Recently filed litigation may prohibit DOS from taking further action

The American Association of University Professors recently filed litigation to halt this program of visa rescission on First and Fifth Amendment grounds. This litigation is currently pending, and no temporary restraining order or injunction has yet been issued.

A second lawsuit has been filed by an anonymous student in California. The student is claiming violations of the Administrative Procedures Act (APA) and the 5th Amendment’s due process clause and is seeking reinstatement of their SEVIS record. Currently, the plaintiff is not asking the court for a broad-based temporary restraining order or injunction.

Gibney will continue to monitor for updates. For more information, contact your Gibney immigration contact or email info@gibney.com.

March 31, 2025

Jack Daniel’s Harmed, but Not Infringed, by Chewy Dog Toy: Key Trademark Takeaways from the Latest VIP Products and Jack Daniel’s Ruling

Jack Daniel’s Harmed, but not infringed, by chewy dog toy

The latest ruling in ‘Bad Spaniels’ finds the whiskey brand’s marks were diluted-but not infringed by a dog toy parody, explain Brian Brokate and Jacqueline Alcantara of Gibney, Anthony & Flaherty.

After more than a decade of litigation including a Supreme Court ruling, the legal battle between VIP Products and Jack Daniel’s returned to the U.S. District Court for the District of Arizona on remand.

On January 21, 2025, Judge Stephen McNamee ruled that VIP’s ‘Bad Spaniels’ dog toy did not infringe Jack Daniel’s trademark but did in fact dilute its trademark and trade dress.

First Amendment Arguments

This dispute began in 2014 when Jack Daniel’s demanded that VIP Products stop selling its Bad Spaniels chew toy, which closely resembled a Jack Daniel’s Tennessee Whiskey bottle but included parodic elements such as ‘Old No. 2 on Your Tennessee Carpet’ instead of ‘Old No. 7 Tennessee Sour Mash Whiskey’.

VIP filed a lawsuit seeking judgment that its toy did not infringe or dilute Jack Daniel’s trademark. The district court initially ruled in favor of Jack Daniel’s, finding that the toy violated the Lanham Act by misleading consumers.

However, the Ninth Circuit Court of Appeals later reversed this decision, concluding that the toy was a form of expressive speech protected by the First Amendment under the Rogers v. Grimaldi standard.

On appeal, the case went to the Supreme Court, which narrowly ruled that First Amendment protections under the Rogers test do not apply when a trademark is used as a product identifier. The court also ruled that the noncommercial exclusion for dilution does not shield parody when the use of a mark is source-identifying. The case was sent back to the district court on remand to determine whether VIP’s toy diluted and/or infringed upon Jack Daniel’s trademark.

Trademark Dilution

Under the Trademark Dilution Revision Act (TDRA), dilution occurs when a well-known mark’s distinctiveness or reputation is likely to be weakened or harmed by another mark. While there are two types of dilution, the court discusses dilution by tarnishment which the TDRA further defines as “association arising from the similarity between a mark and a famous mark that harms the reputation of the famous mark”. In proving tarnishment, Jack Daniel’s must prove that their mark is in fact famous, that VIP’s mark is similar, and VIP’s use of their mark is likely to cause negative associations that can harm the reputation of Jack Daniel’s famous mark.

Jack Daniel’s argued that VIP’s toy tarnished its brand by linking it to dog waste-related humor. The court considered:

  • Jack Daniel’s widespread recognition, including but not limited to having sold millions of cases over decades;
  • The nearly identical design of VIP’s toy, which mimicked Jack Daniel’s bottle shape, font, and color scheme; and
  • The potential negative brand association due to the product’s pet-related parody.

The court ultimately ruled in Jack Daniel’s favor on the dilution claim, determining that VIP’s parody harmed the whiskey brand’s image.

A Clear Parody

To establish trademark infringement, Jack Daniel’s needed to prove distinctiveness, non­ functionality, and likelihood of confusion between the two marks. The court previously ruled as a matter of law that Jack Daniel’s trademarks are distinctive and non-functional, therefore on remand, the district court only focused on ‘likelihood of confusion’. As the Supreme Court ruled, while parody is relevant in assessing confusion, it does not override the Lanham Act when a trademark is used as a product identifier.

Therefore, the district court reviewed other parody-related trademark cases, including Louis Vuitton Malletier v. Haute Diggity Dog. After evaluating parody laws, the court determined that VIP’s toy was a clear parody and not an attempt to mislead consumers into believing it was an official Jack Daniel’s product.

The court applied the Sleekcraft factors to assess likelihood of confusion. While many factors favored Jack Daniel’s, the court ruled that VIP’s intent to parody outweighed them, meaning Jack Daniel’s failed to prove infringement by a preponderance of the evidence.

Key Takeaways

The court ultimately ruled that VIP’s toy diluted Jack Daniel’s trademark by associating it with pet waste humor-however, it did not infringe Jack Daniel’s trademark, as the product was a legally protected parody that did not significantly mislead consumers.

This ruling clarifies the difference between dilution and infringement, demonstrating that parodies may not confuse consumers but can still harm a brand’s reputation. It also signals that companies should be cautious when parodying well-known trademarks, as courts may still find dilution even if there is no infringement.

March 13, 2025

New Regulation on Alien Registration Requirement Takes Effect April 11

The U.S. Department of Homeland Security (DHS) has published an Interim Final Rule (IFR) requiring non-citizens who remain in the U.S. for 30 days or more and were not previously registered to register and be fingerprinted.  The rule will take effect on April 11, 2025.

Individuals Required to Register

The regulation primarily impacts undocumented foreign nationals who are not otherwise considered to be already registered.

In addition, Canadian visitors who enter to the U.S. at a land port of entry and were not issued Form I-94 at admission will be required to register if they remain in the U.S. for 30 days or longer.

Of note, non-citizen children under the age of 14 must apply to register and be fingerprinted (unless fingerprinting has been waived) within 30 days of their fourteenth birthday, even if they were previously registered.  This requirement applies to both children in non-immigrant status (e.g. H-4, L-2) and to children in lawful permanent resident status.

Individuals with questions on whether they are required to register or re-register should contact immigration counsel.

Individuals Considered Already Registered

Non-citizens who have already registered include:

  • Individuals issued immigrant or nonimmigrant visas before their last date of arrival;
  • Individuals admitted to the United States as nonimmigrants who were issued Form I-94 or I-94W (paper or electronic);
  • Lawful permanent residents;
  • Individuals issued an employment authorization document;
  • Individuals paroled into the United States;
  • Individuals placed into removal proceedings;
  • Individuals who have applied for lawful permanent residence using Forms I-485, I-687, I-691, I-698, I-700, and provided fingerprints, even if the applications were denied; and
  • Individuals issued Border Crossing Cards.

Individuals Exempted from the Registration Requirement

Exempted from the registration requirement are diplomats and officials in A and G visa status, and certain American Indians born in Canada.

How to Register

Individuals required to register may submit Form G-325R Biographic Information (Registration) which has been made available for online filing through myUSCIS accounts.  Submission of the G-325R Registration in myUSCIS initiates the process for scheduling a biometric appointment at an Application Support Center.  Upon completion of biometrics, “Proof of Alien Registration” with a unique identifier will be created and posted to the applicant’s myUSCIS account.

For Canadians and children under 14 who are required to register but for whom fingerprinting has been waived, the “Proof of Alien Registration” will be created upon submission of Form G-325R.

In addition to biographic data for the applicant and their family members (spouse and parents), Form G-325R solicits addresses in the past 5 years, activities since the most recent entry, as well as prospective activities the individual expects to engage in until the expected departure.

At this time, no fee is required for submission of Form G-325R.  However, DHS has solicited public comment on implementing a biometric services fee of $30 per registrant in the future.

Background

Existing immigration law requires non-citizens who remain in the U.S. for 30 days or longer to register, submit fingerprints (unless waived), carry evidence of registration at all times, and notify DHS of a change in address within 10 days of moving.  Historically, enforcement of these provisions – which originate in the Smith Act of 1940 – has been inconsistent.

Consistent with the new Administration’s policy of extreme vetting and immigration enforcement to the full extent of the law, the IFR implements a specific mandate from Executive Order 14159, Protecting the American People Against Invasion, of January 20, 2025, which directed the agencies to announce, publicize and enforce the legal obligation of non-citizens to register.

Registration and fingerprinting: All non-citizens age 14 or older who remain in the U.S. for 30 days or longer are required to register and fingerprint (unless waived).  Children under the age of 14 must be registered by their parents/guardians.  Upon turning 14 years of age, children (regardless of whether they were previously registered or unregistered) must register and be fingerprinted within 30 days of turning 14.

Carrying evidence of registration: All non-citizens aged 18 or older must carry evidence of registration at all times.  Evidence of registration includes:

  • Form I-94, Arrival-Departure Record – non-citizens admitted as nonimmigrants; noncitizens paroled into the US under 212(d)(5) of the INA; non-citizens who claimed to have entered prior to July 1, 1924; and non-citizens granted permission to depart without the institution of deportation proceedings;
  • Form I-551, Permanent Resident Card;
  • Form I-766, Employment Authorization Document (EAD);
  • Valid, unexpired nonimmigrant DHS admission or parole stamp in a foreign passport;
  • Form I-95, Crewmen’s Landing Permit; Form I-184, Alien Crewman Landing Permit and Identification Card;
  • Form I-185, Nonresident Alien Canadian Border Crossing Card;
  • Form I-186, Nonresident Alien Mexican Border Crossing Card;
  • Form I-221, Order to Show Cause and Notice of Hearing;
  • Form I-221S, Order to Show Cause, Notice of Hearing, and Warrant of Arrent of Aliens;
  • Form I-862, Notice to Appear, for those noncitizens against whom removal proceedings are being instituted;
  • Form I-863, Notice of Referral to Immigration Judge, for those noncitizens against whom removal proceedings are being instituted;
  • “Proof of Alien Registration” issued upon submission of Form G-325R and biometrics.

Change of address:   All non-citizens must report their change in address to DHS within 10 days of moving.

Penalties

An individual who willfully fails or refuses to apply to register or be fingerprinted may be fined up to $5000 or imprisoned for up to six months, or both. Non-compliance with the requirement to carry proof of registration at all times and to report a change in address is punishable by a fine of up to $5,000 or imprisonment of up to 30 days, or both. In addition, an individual who fails to comply with the change-of-address reporting requirement may be deportable unless the failure was not willful or was reasonably excusable.

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

February 19, 2025

U.S. Department of State Updates Guidance for Visa Interview Waivers at U.S. Consulates: Impact on Nonimmigrant Visa Holders

The U.S. Department of State has announced updated guidance restricting eligibility for nonimmigrant visa interview waivers at U.S. Consulates. Under the revised guidance, nonimmigrant visa applicants may be eligible for an interview waiver if they previously held a visa in the same category and their prior visa expired within the last 12 months or is still valid, among other eligibility requirements. The guidance also provides that individuals applying for visas in certain diplomatic or official government organization visa classifications may be eligible for visa interview waivers.  Visa applicants who do not meet the revised narrower criteria will be required to attend an in-person interview at a U.S. Consulate to apply for their visa.

Prior Policy and What Has Changed

Previously, nonimmigrant visa applicants were eligible for an interview waiver and drop box processing if they held an approved nonimmigrant visa in any category that had expired within the last 48 months. This prior guidance was introduced following the COVID-19 pandemic to reduce consular visa application backlogs and streamline visa application processing.

Under the updated criteria, nonimmigrant visa applicants may be eligible to renew their visas without a visa interview if they meet the following criteria:

  • Apply in their country of nationality or residence;
  • Have never been refused a visa (unless such refusal was overcome or waived); and
  • Have no apparent or potential ineligibility.

The guidance also indicates that consular officers may still require in-person interviews on a case-by-case basis or because of local conditions.

The more restrictive criteria for visa interview waivers are consistent with the directive of “maximum vetting” as announced in the Administration’s Executive Order of January 20, 2025.

Impact on Nonimmigrant Visa Holders

This change will likely increase the wait times for in-person visa appointments at U.S. Consulates worldwide.

The Department of State has not confirmed yet how consular posts will treat interview waiver eligibility for drop box appointments that have already been scheduled, or interview waiver visa applications that are currently pending adjudication. There have been reports that some applicants with scheduled interview waiver appointments who do not meet the updated criteria have been turned away and told to schedule in-person interview appointments instead.

Individuals who have already made a consular appointment under the interview waiver program and whose prior visa was in a different category or expired more than 12 months ago, may be required to schedule an in-person interview.

Prior to travel, individuals that require a new visa stamp to return to the U.S. should carefully review U.S. Consulate websites for more detailed information about visa application requirements and procedures, and the specific U.S. Consulate’s operating status and services.

Gibney is closely monitoring these developments and will provide additional updates as they are announced. If you have questions or require assistance, please contact your Gibney representative or email info@gibney.com.

February 18, 2025

March 2025 Visa Bulletin Released: What Employers Need to Know

The Department of State released the March 2025 Visa Bulletin and USCIS has confirmed they will continue to utilize the Final Action Dates chart for employment-based Adjustment of Status applications. The Final Action Dates chart notes moderate advancement across several employment-based categories including:

  • EB-2 and EB-3 India Final Action Dates will advance by six weeks;
  • EB-2 China Final Action Dates will advance by two weeks;
  • EB-2 Worldwide Final Action Dates will advance by six weeks;
  • EB-3 China Final Action Dates will advance by one month; and
  • EB-3 Other Workers India will advance by six weeks, the Philippines will advance by five weeks, and all other countries will advance by approximately two months.

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 Final Action Dates across all employment-based categories will hold steady from last month:
    • EB-1 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) remains current.
    • EB-1 China: Final Action Dates will maintain a filing cutoff date of November, 8, 2022.
    • EB-1 India: Final Action Dates will maintain a filing cutoff date of February 1, 2022.

EB-2, Second Preference Category

  • EB-2 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) will advance by six weeks to May 15, 2023.
  • China: Final Action Dates will advance by two weeks to May 8, 2020.
  • India:  Final Action dates will advance by six weeks to December 1, 2012.

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

  • EB-3 Worldwide (including El Salvador, Guatemala and Honduras, Mexico and Philippines) will maintain a filing cut-off date of December 1, 2022.
  • China: Final Action Dates will advance by one month to August 1, 2020.
  • India: Final Action Dates will advance by six weeks to February 1, 2013.

EB-3 Other Workers

  • Other Workers (including El Salvador, Guatemala, Honduras, and Mexico) will advance by approximately two months to February 1, 2021.
  • Philippines will advance by five weeks to January 15, 2021.
  • China will maintain a filing cut-off date of January 1, 2017.
  • India will advance by six weeks to February 1, 2013.

EB-5: Fifth Preference Category (Immigrant Investors)

  • EB-5 Final Action Dates across all employment-based categories will hold steady from last month:
    • For the EB-5 Unreserved categories (C5, T5, I5, and R5), India will remain unchanged at January 1, 2022 and China will maintain a cut-off date of July 15, 2016. All other countries will remain current.
    • The EB-5 “Set-Aside” categories (Rural, High Unemployment, and Infrastructure) will remain current.

Individuals with a priority date that is before the published cut-off date may file an Adjustment of Status application based on the dates outlined above.

WHAT SHOULD EMPLOYERS EXPECT?  

As noted in the March Visa Bulletin, modest advancement is observed under Final Action Dates for EB-2 and EB-3 China and India, as well as for EB-2 Worldwide and EB-3 Other Workers by approximately two weeks to two months, depending on the employment-based category and country.

Due to continued high demand for green cards across all employment-based categories, moderate advancement in the visa bulletin is likely to continue in the coming months to ensure efficient visa allocation. As a result, Employers should work closely with immigration counsel to promptly file eligible Adjustment of Status applications, as ongoing backlogs and strong demand are expected to further extend the green card process for many foreign nationals.

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