Tag: Immigration

As of October 1, 2025 at 12:00AM EST, the United States Government has shut down. Congressional Democrats have stated that they will withhold support for any spending bill that does not extend existing health insurance subsidies that are set to expire at the end of the year. In the past, government agencies have furloughed employees during a government shutdown, but the White House’s Office of Management and Budget has warned that federal agencies should prepare for mass firings if a shutdown occurs. Mass firings could potentially lead to disruptions in service of many agencies as they struggle with a reduced workforce. The last time the government shutdown was in December 2018 and it lasted for a period of 35 days.  It is unclear as of this time how long this shutdown will last.

Below is a brief overview of the potential immigration impact based on how government agencies operated during prior shut downs.

US. DEPARTMENT OF LABOR (DOL)

DOL will cease accepting or processing applications for Labor Condition Applications (LCAs) needed for H-1B petitions and E-3 applications, prevailing wage applications, and PERM labor certification applications.  DOL may issue guidance providing flexibility to employers who are unable to file PERM labor certification applications with expiring recruitment due to the shutdown.

U.S. CITIZENSHIP AND IMMIGRATION SERVICES (USCIS)

Because USCIS application and petition adjudications are primarily funded by user application fees, USCIS is expected to continue operations without great disruption, though processing times may slow. However, the filing of H-1B petitions and E-3 applications will be impacted, as a DOL-issued LCA is required for the filing (see above).  In the past, USCIS accepted late filings if failure to timely file an H-1B or E-3 extension was due to the government shutdown.

USCIS E-Verify service is appropriations-funded and will be suspended. If the government shuts down, employers will not be able to enroll in E-Verify or to access their E-Verify accounts to verify the employment eligibility of new hires and resolve tentative nonconfirmations (TNCs). E-Verify customer service, online webinars and training sessions, and the Self-Check program will also be unavailable during the shutdown. Employers must still comply with their Form I-9 obligations. In prior years employers were allowed to continue using the new alternate review process for remote I-9 document verification if E-Verify is temporarily unavailable due to a government shutdown. It is expected that this will continue to be the case, as the agency has not said otherwise.

U.S. CUSTOMS AND BORDER PROTECTION (CBP)

CBP personnel, responsible for inspection and law enforcement at U.S. ports of entry, are considered “essential personnel” and are expected to work without pay during a shutdown. U.S. borders and Preflight Inspections (PFI) areas will remain open. However, there may be staffing adjustments that could result in increased wait times to clear inspection and secure admission to the U.S. Additionally, adjudication of petitions by CBP officers at the border and PFI areas, such as TN applications and L-1 petitions for Canadian citizens, may be impacted.

U.S. DEPARTMENT OF STATE (DOS)

Visa and passport services are fee-funded and should continue as long as there are sufficient fees to support operations. However, passport offices housed in government buildings otherwise closed during a shutdown may become unavailable to the public. U.S. Embassies and Consulates remain open and will continue to process visa applications as long as funding remains in place. Visa application processing times may be delayed due to staffing adjustments or slowdowns at other federal agencies responsible for processing the security clearances required for visa issuance. A prolonged shutdown could ultimately exhaust DOS appropriations and result in the suspension of visa processing functions for all but emergency cases.

What Employers Need to Know

For talent acquisition professionals, it is important to note that all H-1B, H-1B1, and E-3 transfers where an LCA has not already been procured will need to be suspended until the government reopens and services from the DOL resume.  At this time, we suggest the following:

• For any individuals who have not yet been given offers, please consider that any offers you do ultimately decide to issue to a job applicant who requires an H-1B, H-1B1 or E3 visa may be subject to delay.  Should you be willing to accept an unknown delay in visa processing at this time, you may wish to consider making the offer contingent on starting by a certain date in case the delay ultimately becomes unacceptable to the business.  Please consult internally in your team and with the relevant business manager to determine whether you will proceed to offer.  A Gibney professional will remain available to discuss this with you and your team, as needed.
• For any individuals who have accepted an offer and who require an H-1B, H-1B1 or E3 visa, and where an LCA has not yet been procured, the start date will be delayed.  The delay should be communicated to the individual and immigration counsel will provide updates on such impacted cases.

The situation posed by the federal government shutdown remains fluid. As the shutdown persists, the impact on immigration related services may change. Gibney will be closely monitoring the situation and will provide updates. If you have any questions about this alert, please contact your Gibney representative or email info@gibney.com.

The general information provided herein is not intended to serve as a source of legal advice for any purpose. Please contact your designated Gibney representative or immigration counsel for specific legal advice.

On September 24, 2025, the U.S. Department of Homeland Security (DHS) issued a notice of proposed rulemaking (“NPRM”) to amend its H-1B regulations. The proposal also includes provisions that would change the H-1B cap registration and selection process.

If implemented, the NPRM would revise the H-1B Cap selection process to add extra weight to applicants who are paid higher salaries relative to their respective fields. As a result, those individuals would be more likely to be selected.

BACKGROUND

When filing an H-1B petition, employers must first obtain a certified Labor Condition Application (“LCA”) from the Department of Labor (“DOL”). A required step in this application process is for employers to confirm that they are paying at or above the prevailing wage for the position in the area of intended employment. Employers select, from a DOL statistical database, the appropriate occupational classification for the offered position. The salaries for these positions are divided into 4 levels, from “entry level,” at Level I, to “fully competent workers,” at Level IV. The prevailing wage amount increases commensurate with the level.

While this this determination (as well as the LCA certification) is a requirement for the filing of an H-1B petition, it has not been required, nor has it been a consideration for selection, for H-1B cap registration.

The Details

In advancing the rule, DHS proposes to “implement a weighted selection process that would generally favor the allocation of H–1B visas to higher skilled and higher paid aliens, while maintaining the opportunity for employers to secure H–1B workers at all wage levels.” To do so, the rule will require that employers entering beneficiaries into the H-1B cap lottery will need to submit, not only biographical details on the beneficiaries (which has been the case in previous lotteries), but also details on the offered position, including the salary, the geographical area of intended employment, the occupational classification, and the wage level.

After registration has closed, USCIS will weight the entries by manipulating the number of times a given beneficiary is added to the pool. According to the NPRM, the registrations will be weighted in the following manner:

• Positions with Level I wages will be entered into the lottery 1 time;
• Positions with Level II wages will be entered into the lottery 2 times;
• Positions with Level III wages will be entered into the lottery 3 times; and,
• Positions with Level IV wages will be entered into the lottery 4 times.

The intended result of this change is that beneficiaries who are offered higher salaries relative to the area of employment, would see a far higher chance of being selected in the lottery. Those beneficiaries who are offered salaries that meet the lower levels will still have a chance at being selected, but would find themselves at a statistical disadvantage.

What’s Next?

The public may submit comments to the rule through October 24, 2025. Once DHS reviews and considers all comments, it intends to publish a final rule. While there is no anticipated publication date for the rule at this time, the rule would be issued no sooner than 60 days from the issuance of the NPRM, or November 24, 2025.

Gibney will closely monitor advancement of this rule and will provide updates as they become available. For questions about the rule and the notice and comment period, please contact your designated Gibney representative.

A Presidential Proclamation labeled “Restrictions on Entry of Certain Nonimmigrant Workers” has been issued by President Trump on September 19, 2025, imposing restrictions on the H-1B visa program that go into effect Sunday, September 21, 2025 at 12:01 a.m. eastern daylight time (Saturday, September 20, 2025 at 9:01 p.m. pacific standard time).

The Proclamation imposes a $100,000 annual fee for each H-1B visa petition and places restrictions on entry into the U.S. with very limited exceptions unless this fee is paid.  No instructions have been given on how the fee would be paid, or how an exception could be obtained.  It remains unclear, as of the time of this alert, whether the travel restriction will be imposed solely on “prospective” H-1B employees who have no current employment ties, or also to H-1B visa holders returning to resume employment in the U.S.

Key Points

• Effective Date: Sunday, September 21, 2025, at 12:01 a.m. ET
• Expiration: One year from the effective date (unless extended)
• Restrictions on Entry:
  • The Proclamation restricts entry of individuals who seek to enter the U.S. in H-1B status on or after the effective date of September 21, at 12:01 AM ET, unless accompanied by proof of $100,000 fee payment.
  • Some language in the Proclamation suggests that the restriction on entry will apply solely to new, prospective H-1B petitions on behalf of beneficiaries who are outside the United States during the effective period of the Proclamation. This is consistent with the informal confirmations Gibney has received as of late morning, Saturday, September 20, 2025, from several Customs and Border Protection officers, who expect that the ban will apply to new (prospective) H-1B petitions.  We caution that these informal confirmations may not be relied upon as official guidance.
  • Potentially impacted H-1B visa holders must await further clarity on whether the Proclamation may also apply to existing H-1B workers who happen to be currently travelling outside the United States, or to those who subsequently depart and try to reenter the U.S. in H-1B status during the effective period of the Proclamation.
• Restrictions on Petition Adjudications:
  • USCIS is directed not to adjudicate H-1B petitions filed on behalf of individuals who are abroad on or after the effective date, unless accompanied by proof of $100,000 fee payment.
  • Extensions, change of employer, change of status, and amended petitions on behalf of individuals who are already in the U.S. in valid status appear to be exempt.
• National interest exceptions may be available at individual, company, or industry level, subject to DHS approval.
• Additional Government Action:
  • By the end of April 2026 (30 days after the next H-1B cap lottery), key federal agencies will jointly recommend whether the restriction on entry should be extended.
  • The Secretary of State is to issue guidance aimed at preventing B visa misuse (presumably to prevent individuals from entering in B status and filing a change of status petition to circumvent the fee).
  • The Department of Labor is instructed to revise prevailing wage rules and prioritize high-skilled, high-paid foreign nationals.

Next steps

• While it may not be feasible for those outside the U.S. to return before the Proclamation takes effect, employers should consider issuing a travel advisory to H-1B employees (as well as those in other visa statuses who hold an approved H-1B cap petition) to caution against international travel until further details emerge.
• Upon learning of employees who are outside the U.S. and expected to return soon, each case must be evaluated to determine the most prudent course of action, as additional information becomes available.

This alert is for informational purposes only and should not be construed as legal advice.  Please contact your designated Gibney attorney for further guidance.

The Department of State has confirmed that the annual limit for the EB-1, EB-2 and EB-3 immigrant visa categories has been reached for FY2025. Accordingly, no immigrant visas or green cards will be issued for the remainder of the fiscal year, which ends on September 30, 2025. However, in prior years USCIS has continued to accept EB-1, EB-2 and EB-3 Adjustment of Status applications which are listed as current in the visa bulletin for September. Although Adjustment of Status filings based on the EB-1, EB-2 or EB-3 categories may continue to be accepted by USCIS, these filings cannot be approved until a visa number becomes available.

WHAT SHOULD EMPLOYERS AND FOREIGN NATIONALS EXPECT?  

In prior years, USCIS has continued to accept Adjustment of Status applications for filings that are current in the Visa Bulletin irrespective of the announcement confirming the usage of all available immigrant visas. However, given the current immigration landscape, the more conversative approach may be to wait until the commencement of the new fiscal year to proceed with eligible Adjustment of Status filings. However, case specific facts and deadlines pertaining to individual cases, in conjunction with an analysis of the October Visa Bulletin may warrant proceeding with the Adjustment of Status application in September. In considering filing an Adjustment of Status application for one of the employment-based categories noted above in September, close collaboration and guidance with Gibney legal counsel is recommended.

For pending Adjustment of Status filings already submitted, if the underlying category is unavailable, the application will not be decided on until a visa number becomes available. Foreign nationals are also advised to attend any scheduled Adjustment of Status interviews though the interview may ultimately be rescheduled and cannot result in an approval until visa numbers are available. The new fiscal year commences on October 1, at which time, the green card allocation will reset for all employment-based categories.

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

U.S. Consulates abroad have begun directing certain visa applicants to adjust privacy settings on all social media profiles to “public” in steps taken to comply with Department of State’s earlier directive that F-1, M and J visa eligibility will be subject to enhanced vetting and review of social media.

This comes at a time where we see continued directives and adjustments in U.S. immigration policy domestically to further define and direct the scope and discretion of U.S. Citizenship and Immigration Services (USCIS) to review certain immigration benefits.  USCIS recently updated its Policy Manual to reinforce discretionary authority with regard to determinations on eligibility for certain immigration benefits with further guidelines to USCIS officers on how to apply discretion in their review of specific case types. These updates have been outlined in Policy Alert Clarifying Discretionary Factors in Certain Immigration Benefit Requests” (PA-2025-16) issued on August 19, 2025.

USCIS has always held the authority to make discretionary determinations with regard to eligibility for immigration benefits, such as applications for U.S. permanent residence (Green Card), applications for extension and change of nonimmigrant (temporary) visa status, among others, based on factors outside of the threshold eligibility requirements. However, the updates to the Policy Manual, provide further clarification and specific direction with regard to how this discretionary authority should be exercised:

Review of conduct that could be considered Anti-American and Antisemitic

Immigrations officers are directed to consider an applicant’s endorsement, promotion, or support of anti-American or terrorist organizations and ideologies, including antisemitic terrorism and ideologies, as an “overwhelmingly negative factor” in their discretionary analysis.  Specifically, officers are directed to deny benefits through the application of their discretionary authority to such applicants.

The review of engagement or association with terrorist organizations has always been a part of the review of certain applications.  The new updates to the Policy Manual, however, appear to expand review beyond direct participation or affiliation with a terrorist group to any activity that could be deemed as endorsing, promoting, supporting, or otherwise espousing anti-American or antisemitic ideologies. Without further clarification on what constitutes these ideologies, individual USCIS officers are granted the authority to make subjective determinations when applying this discretionary authority.

Review of Prior Admission to the U.S.

Additionally, immigration officers are directed to particularly review whether an applicant’s previous admissions or paroles into the U.S. were “made in accordance with all applicable laws, regulations, and policies in effect at the time.”  The specific update to the USCIS Policy Manual indicates that an applicant’s knowledge of false or fraudulent information in the underlying application that is used as the basis for entry to the U.S. would be a negative discretionary factor that could lead to denial of the application.

Exercise of Discretion in Nonimmigrant Visa Petitions

In applications to extend or change nonimmigrant visa status USCIS also holds discretionary authority to review factors outside of the standard eligibility requirements for the requested visa category. The existing discretionary authority is reinforced and officers are referred to apply the same standards that are applied in permanent cases, including the newly added consideration of any activity that could be deemed anti-American and antisemitic. These standards are also explicitly stated with regard to reinstatement of F or M nonimmigrant student status and in employment authorization requests.

Other updates

Of note, the updates to the Policy Manual confirm that in connection with employment-based cases, the exercise of discretion should only be applied to petitions requesting a National Interest Waiver. It also clarifies how discretion is applied in the adjudication of certain EB-5 investor petitions, specifically in cases involving threats to national interest, fraud, or criminal misuse.

What Employers Should Know

While USCIS officers have always held discretionary authority in connection with their review of certain petitions and applications, the addition of the broad language regarding activities that could be viewed as anti-American or antisemtic could result in heightened vetting and denials of immigration benefits for otherwise qualified applicants.

The Department of Homeland Security (DHS) announced a proposed rule that will limit the periods of admission for F-1 student, J-1 exchange visitor and I-1 foreign media visa holders and increase DHS oversight.

Background
Currently, nonimmigrants in F, J, and I nonimmigrant status are admitted to the United States for a period known as “duration of status” (D/S). The D/S designation allows these individuals to remain in the US (provided they have valid I-20 or DS-2019) as long as they are completing their academic program, exchange program or assignment. Under the proposed rule the period of admission would transition from D/S to a fixed period of stay.

Key Proposed Changes

For F-1 students, J-1 exchange visitors, and their dependents:

• Fixed period of stay: The maximum admission period for individuals and dependents, would be set to the program length listed on the Form I-20 or DS-2019, not to exceed a four-year period.
• Reduced grace period: The grace period would be reduced from 60 to 30 days for F-1 students to depart the U.S. after program completion to align with the current J-1 grace period.
• Extension of Stay (EOS) Requirement: To stay beyond the fixed admission period, visa holders would need to file a formal extension of stay (Form I-539) with U.S. Citizenship and Immigration Services (USCIS).
• Restrictions on new programs: The rule would prevent F-1 students from starting a second academic program at the same or lower educational level after completing their initial program.
• Changes for graduate students: Graduate students would be prohibited from transferring schools or changing their program of study while inside the US.
• Limitations on English language studies: For F-1 students, the maximum admission period for English language training programs would be limited to 24 months.
• Unlawful presence: Individual remaining in the US after the I-94 fixed admission date expires would immediately begin accruing unlawful presence.

For I visa holders (foreign media representatives):

• Fixed admission period: The admission period would not exceed 240 days, with the possibility of extensions but not longer than the activity or assignment.
• Special limits for Chinese nationals: A 90-day admission period would apply to representatives from the People’s Republic of China, excluding Hong Kong and Macau.

Impact for Employers and Visa Holders

• Extension of stay challenges: Employers that hire F-1s on CPT, OPT EADs, or STEM EADs will need to review EOS applications
• D/S transition for current visa holders: For individuals currently on D/S, the fixed admission period will need to be reviewed to determine if an EOS application will be required
• Increased filings: Compliance will likely require more frequent filings with USCIS for international students and educational institutions as well as additional fees
• Processing delays: The new EOS requirement could cause delays for students in longer-term academic programs

What’s Next

The rule is not yet in effect. The proposed rule has been published in the Federal Register and is in the public comment phase until September 29, 2025. After reviewing all comments, DHS may revise the rule and publish a final version with an effective date in the Federal Register. Gibney will continue to monitor this and provide ongoing updates.

Recent federal executive orders may affect employers navigating identity document policies for transgender, nonbinary, gender-nonconforming, and intersex (TGNCNBI) employees and their family members. Executive Orders have altered the availability of gender markers for U.S. passports and Consular Reports of Birth Abroad (CRBA). These changes impact employees’ ability to obtain accurate identity documents, potentially affecting workplace verification processes and international travel. This article outlines what employers need to know about these policy shifts and their implications for employees and business operations.

As of the date of the publication of this article, a federal court has temporarily blocked the passport policy outlined below on June 17, 2025 in the associated federal court case Orr v. Trump, which will be explained below.

Passports

The Trump administration altered the gender marker options available for U.S. passport applicants. The Executive Order (entitled “Defending Women from Gender Ideology Extremist and Restoring Biological Truth to the Federal Government”), signed on January 20, 2025, recognizes only two genders as that assigned at birth. It directed the Secretary of State to suspend passport applications requesting the X gender marker, and to suspend all passport applications for transgender applicants applying for a passport with a gender marker selected other than that assigned at birth. The Department of State (DOS) advised that in these cases, an application may be delayed in receiving a passport. Applicants may receive a letter/email requesting more information, such as an original birth certificate, or the DOS may issue a passport with the gender marker of the applicant’s sex assigned at birth, based on supporting documentation and DOS records of previous passports.

Importantly, the DOS has advised that all passports of transgender people who passport contains a gender marker other than that assigned at birth and/or with an X gender marker will remain valid until their expiration date.

Consular Reports of Birth Abroad (CRBA)

The DOS issued a directive in response to the aforementioned Executive Order that they will no longer issue CRBAs for transgender people with a gender marker other than that assigned at birth and/or with an X gender marker. Notably, the DOS has also confirmed that CRBAs that have already been issued remain valid until expiration.

As Things Currently Stand

Currently, both the Passport Policy and the CRBA Policy are temporarily halted.

On February 7, 2025, the American Civil Liberties Union (ACLU) filed a federal lawsuit, Orr v. Trump, challenging the Executive Order’s policies to not issue passport for transgender applicants applying for a passport with a gender marker that differs from that assigned at birth and/or applicants applying for a passport with an X gender marker.

As of June 17, 2025, there is a preliminary injunction against the Executive Order and accompanying DOS passport policy.

Additionally, the federal court certified a class of people who are now eligible to continue to apply for passports with X gender markers and/or for transgender applicants. The class members include:

• Applicants who seek a male, female, or X gender marker on their passport to match their gender identity;
• Applicants who do not have a valid passport or whose passport expires within one year;
• Applicants who need to update their passport regarding their name and/or gender marker;
• Applicants who are replacing a lost or damaged passport.

Please note that the government may appeal the preliminary injunction, which would cause the Executive Order and accompanying Passport Policy to be reinstated, affecting pending passport applications.

As federal policies continue to evolve, it is important for employers to stay informed about changes affecting identity documents for TGNCNBI employees and their families. We are closely monitoring federal policy changes affecting this group of employees.

USCIS Updates to the Policy Manual

To remain consistent with the relevant Executive Order, USCIS updated its policy manual to recognize only two genders, male and female, which is the gender as evidenced by one’s birth certificate issued closest to birth. While USCIS has stated that it will not deny benefits because someone does not select their gender marker as that assigned at birth, there may be delays in adjudication. Gibney is closely monitoring this policy as will provide updates as they develop

The Department of State released the September 2025 Visa Bulletin. USCIS will continue to accept employment-based Adjustment of Status applications based on the Final Action Dates chart. All Employment-Based Categories will remain unchanged under Final Action Dates for September. The Dept. of State has indicated that annual limits will be reached in most employment-based categories in August and September due to a steady increase in demand at both USCIS and the Dept. of State.

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: Final Action Dates will maintain a filing cutoff date of November 15,
• EB-1 India: Final Action Dates will hold steady at February 15, 2022

 EB-2, Second Preference Category

• EB-2 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) will maintain a filing cutoff date of September 1, 2023.
• China: Final Action Dates will hold steady at December 15, 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, Honduras and Mexico) will maintain a filing cutoff date of April 1, 2023.
• Philippines: Final Action Dates will remain at February 8, 2023.
• China: Final Action Dates will hold steady at December 1, 2020.
• India: Final Action Dates will remain at May 22, 2013.

Other Workers

• Worldwide (including El Salvador, Guatemala, Honduras, Mexico and Philippines) will maintain a filing cutoff date of July 8, 2021.
• China: Final Action Dates will remain at May 1, 2017.
• India: Final Action Dates will hold steady at May 22, 2013.

EB-5: Fifth Preference Category (Immigrant Investors)

• For the EB-5 Unreserved categories (C5, T5, I5, and R5), India will maintain a filing cutoff date of November 15, 2019 and China will remain at December 8, 2015. All other countries will continue to be 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 September Visa Bulletin, due to a steady increase for employment-based visas during the fiscal year, the Dept. of State notes that numerical limits to most employment-based preference categories for FY 2025 are expected to be reached in August and September. If an employment-based category becomes “unavailable”, the application will not be decided on until a visa number becomes available. The new fiscal year will commence on October 1, 2025, which will reset annual numerical limits across employment-based categories.

As unavailability may be imminent particularly for EB-2, EB-3 and EB-5 categories as reported in the August Visa Bulletin, Employers are advised to file Adjustment of Status applications for eligible applicants as soon as possible as most employment-based categories are expected to reach their numerical limits in the near future.

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

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

Travelers seeking reentry to the U.S. could experience enhanced screening upon arrival with an increased likelihood of electronic device search.  Travelers may wish to reduce the number of devices that they carry when traveling; review data stored on the device that may be confidential in nature and could be subject to search; consider what is posted on social media accounts. While travelers are not legally required to provide U.S. Custom and Border Protection agents with their electronic device, they could be denied admission for failure to do so.

Finally, we note that the current administration has implemented restrictions upon entry for nationals from certain countries which become effective soon after announced.  Currently full and partial restrictions are in place for nationals of 19 countries.  It is anticipated that additional countries could be added in the weeks ahead.

It’s important for all travelers to be extra cautious and alert to any changes that could impact their ability to travel.  Further it is incumbent upon each individual traveler to ensure that they maintain the appropriate documentation for reentry to the U.S.

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

U.S. ENTRY: STATUS AND DOCUMENTATION CHECKLIST

• Confirm the validity of passports for all travelers. Valid passports are required for all international travelers and accompanying family members, including U.S. and Canadian citizens. Renew passports in advance to ensure at least six months’ validity at the time of any visa application or entry to the U.S. Many countries allow renewal of passports by mail through their consulates or embassies in the U.S.
• Carry all documents required for admission to the U.S. Upon arrival in the U.S., some entrants may need to show additional evidence of work or status authorization in addition to a passport and valid visa stamp. Documents vary by visa classification but may include an original I-797, Approval Notice; endorsed Form I-129S; Advance Parole Document; Employment Authorization Document (EAD); Form DS-2019 with travel authorization; and/or travel endorsed Form I-20. Proof of COVID-19 vaccination is no longer required for international travelers entering the U.S.
• 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 of their admission. At many Ports of Entry, CBP has stopped issuing a passport stamp. If a stamp is issued, ensure that the classification is correct and immediately alert CBP to any errors.
• Review your I-94 record. After each entry to the U.S., foreign nationals should access and review the electronic I-94 record available on the CBP website. This is more important than ever, as CBP no longer stamps passports at entry. Expiration dates for the I-94, underlying petition, or work permit may be different from the expiration date on the visa in the passport or on the passport stamp, if issued. Send Immigration Counsel a copy of your I-94 once you have retrieved it.

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

• Consult with Immigration Counsel in advance of travel. Immigration counsel can help to prepare for enhanced vetting and for the consular interview before you apply for a visa. Schedule consultations 60-90 days in advance whenever possible. Keep in mind that appointment wait times at U.S. consulates can range from a few days to a few months.
• Check the Consulate’s website prior to travel. If you require visa issuance at a consulate abroad, review information on specific procedures regarding booking visa appointments and documentation required for visa interviews. Consular procedures vary widely and are subject to change with little notice.
• Complete Form DS-160.This form is required for all temporary visa applicants including dependent spouses and children of principal visa holders. Retain a copy of the final form at the time of submission. Many consulates require that the visa application be completed prior to scheduling a visa appointment.
• Review your visa application/petition. Review the petition prepared by Immigration Counsel on your behalf prior to traveling, to ensure the accuracy of the information reported and consistency with applications.
• Review your online profiles. This includes information in online employee profiles and company pages as well as social media profiles. Government officials at USCIS, U.S. consulates, and U.S. Ports of Entry review online profiles of visitors and foreign workers applying for benefits or seeking entry to the U.S.
• Update company information. Employers should update company pages and sites such as Dunn & Bradstreet that may be referenced by immigration officers to verify employment or business information.
• Gather employment verification. If you are applying for a temporary work visa, most consulates require current employment verification letters from employers. Request these letters in advance of travel to allow adequate time for Human Resources to prepare them. Maintain copies of recent paystubs as evidence of current employment. Ensure that that the employment verification letter is consistent with any immigration petition underlying the visa application, if applicable.
• Disclose any arrests/detainment to Immigration Counsel. Consult with Immigration Counsel if you have been arrested or detained by law enforcement, even if not charged/convicted. Consult with counsel before departing the U.S. or applying for a visa or any other immigration benefit. Citations, arrests or detentions may require disclosure on applications and may impact immigration status and/or eligibility for immigration benefits.
• Check consulate wait times. Review the consulate website for visa appointments and processing times and alert Immigration Counsel immediately if visa issuance is delayed due to security or background clearance issues.
• Confirm consulate holiday hours. Consulates abroad observe both U.S. and local country holidays and some offices may be short-staffed due to vacations.
• Tip for visa appointments: If the consulate has long wait times, book an appointment at the earliest date possible and check the website regularly for newly released appointment times that are more desirable.

TRAVEL DOCUMENTS IF YOU DO NOT NEED A VISA FROM THE CONSULATE

• Visa Waiver Program travelers must have a valid ESTA approval. The Electronic System for Travel Authorization (ESTA) is a mandatory, online pre-screening system for Visa Waiver Program (VWP) travelers. ESTA is only available for travelers who are citizens of recognized VWP countries who wish to enter the U.S. for B-1 business or B-2 tourism purposes. VWP travelers should apply for ESTA at least 72 hours prior to travel and must obtain a valid ESTA approval before traveling. The ESTA clearance will be valid for up to two years. Note that a new ESTA approval is needed when a VWP traveler obtains a new passport and/or changes their name or country of citizenship, and when answers to any of the VWP eligibility questions (e.g., regarding an arrest or visa denial) change.
• Adjustment of Status applicants and Advance Parole travel documents. With the exception of some H and L visa holders, individuals with pending I-485, Adjustment of Status applications must have a valid original Advance Parole travel document issued prior to departing the U.S. Departing the U.S. without an Advance Parole may result in denial of the I-485 application. Note that the Advance Parole document must be valid when you depart the U.S. and valid when you return.

HELPFUL LINKS

• Find links to U.S. consular posts around the world at S. Consular Posts
• To find the nearest foreign consulate in the U.S. visit Foreign Embassies and Consulates in the U.S.
• Check U.S. consular wait times at Visa Appointment Wait Times
• For information on the Visa Waiver Program and current VWP countries visit Visa Waiver Program
• Obtain and review your electronic I-94 record at CBP I-94s
• Complete the DS-160 Online Nonimmigrant Visa Application at DS-160

For specific travel-related questions, please contact your Gibney representative or email info@gibney.com