Legal Updates

Presidential Proclamation Bans Entry to the U.S. of Certain H-1B Nonimmigrants if $100k is Not Paid

On September 19, 2025, President Trump issued a proclamation restricting the entry of anyone seeking to enter or reenter the U.S. in H-1B status without payment of a new $100,000 fee. The proclamation, titled Restriction on Entry of Certain Nonimmigrant Workers became effective on Sunday, September 21, 2025, and is set to expire after one year (but may be extended).  Because the proclamation has raised questions, the government issued additional information through text, tweets, guidance memos, and FAQs in the following days. Nevertheless, the lack of clarity persists on many key issues and the situation remains fluid.  While we await further information, we are advising that anyone holding H-1B status in the U.S. not make international travel plans at this time.

Here is what we believe we know:

• The proclamation appears to be limited to H-1B workers who are outside of the U.S.
• USCIS shall not adjudicate petitions unless they are accompanied by proof of payment of the $100,000 fee for H-1B workers who are currently outside of the U.S.
• The Secretary of Labor has initiated rulemaking to revise prevailing wage levels and prioritize the admission of high-skilled and high-paid nonimmigrants.
• The proclamation does not apply to aliens who are: the beneficiaries of petitions that were filed prior to the effective date of the proclamation, the beneficiaries of currently approved petitions, or in possession of validly issued H-1B non-immigrant visas.
• The proclamation does not impact the ability of any current visa holder to travel to or from the United States.
• H-1B extensions, amendments, and changes of employer petitions for those in H-1B status who remain in the United States will not be affected.
• The Proclamation specifically excludes any individual applicant, all individuals employed by a company, or individuals working in a specific industry, if DHS determines that it is in the national interest of the United States and that the exemption would not pose a threat to the security or welfare of the United States.  So called “National Interest Exemptions” may apply on a case-by-case basis, but no guidance has been provided.

Here are the issues where there is a lack of clarity:

• Whether visas will be issued for renewals, changes of employer, amended petitions, cap-exempt petitions, or for H-1B1s filed after the effective date without fee payment.
• Whether cap-exempt employers will be subject to the ban and imposition of the fee given references to the lottery.
• The method for making payment of the new fee.
• Whether the fee applies to H-4 dependents.
• The specific documentation or information that an H-1B visa holder must present to CBP to demonstrate payment.

We would like to emphasize that the information provided by the government has been imprecise, and many questions remain about how the proclamation will work and who is affected. This guidance is likely to change as the government provides additional information and as lawsuits are filed in the next few weeks.  We are monitoring the situation as it unfolds and will provide updates as we learn of them.  Additionally, we are providing a helpful client flyer here.

Immigration-Related Federal Agencies May Be Affected By a Government Shutdown

During a government shutdown, only certain government employees are permitted to work.  A government shutdown will affect the federal agencies most relevant to employment-based immigration (including immigration in the academic sector) as follows:

• United States Citizenship and Immigration Services (USCIS) will remain open as it does not rely on government funding; rather, USCIS is funded by filing fees.
• The Department of State (DOS) will remain open for the most part. Visa and passport operations will continue but, depending on how long the shutdown lasts, work might eventually be limited to diplomatic visas.
• Customs and Border Protection (CBP) will continue to operate, but applications filed at the border, such as certain TN and L-1 applications, may be impacted.
• The Department of Labor (DOL) will stop all operations during a government shutdown.
• Immigration and Customs Enforcement (ICE) enforcement activities will continue, and the ICE Student and Exchange Visitor Programs (SEVP) will remain open.

Contact us with questions about the effect of the shutdown on immigration.  A helpful client flyer has been attached here.

October 2025 Visa Bulletin Shows Significant Movement

The Department of State (DOS) released its October 2025 Visa Bulletin with advancement in the employment-based (EB) categories.  The DOS confirmed that it will apply the Dates of Filing chart for EB categories for the month.  The greatest gains were reflected in the EB-1 through EB-3 preference categories, with some categories advancing more than one year.

Contact us with questions about the Visa Bulletin or Adjustment of Status.

Consular Processing of Immigrant and Nonimmigrant Visas Will Be Limited to Applicant’s Country of Residence

On August 28, 2025, the Department of State (DOS) announced that, effective November 1, 2025, immigrant visa applicants will be required to interview in the consular district of their residence or, if requested, in their country of nationality (as opposed to a third country).  Exceptions may be granted in rare circumstances such as humanitarian or medical emergencies.  In most cases, an applicant with an already existing appointment should not be affected by this announcement.

On September 18, 2025, the DOS updated its nonimmigrant interview waiver policy, effective October 1, 2025. The updated policy requires in-person interviews for most visa categories (including E-1, E-2, F-1, H-1B, J-1, L-1, O-1, and others). The interview waiver will no longer be available, even for repeat applicants or renewals.  Applicants under age 14 or over 79 will also be required to interview in-person. 

Contact us with questions about consular processing.

USCIS to Update the Naturalization Civics Test

For naturalization applications filed on or after October 20, 2025, USCIS will use an updated version of the Naturalization Civics Test.  The updated version focuses on the fundamentals of American History and the principles and structure of the US government but does not alter the English language part of the test.  In advance of the implementation of the 2025 test, USCIS will update the Naturalization Test and Study Material on its website.  The study materials will include a bank of 128 possible civics test questions, from which 20 test questions will be randomly selected for each individual test, along with the answers to those questions.  To pass, the applicant must answer twelve questions correctly.  The officers will only be required to ask questions until the applicant either passes or fails the test.  Therefore, when an applicant answers 12 questions correctly, the officer will stop administering the test.  Similarly, when an applicant answers nine questions incorrectly, thereby failing the test, the officer will stop administering the test.

Contact us with questions about naturalization and/or the new test.

Reports Circulate of USCIS Having Issued NTAs for H-1B Workers Within 60-Day Grace Period

A Notice to Appear (NTA) is a document issued by the government to initiate removal proceedings.  Generally, NTAs have not been issued to individuals lawfully in the US pursuant to the 60-day grace period that follows termination of employment.  However, the regulations do permit the Department of Homeland Security (DHS) to “eliminate or shorten this 60-day period as a matter of discretion.”  Recently, there have been reports of USCIS issuing NTAs to H-1B workers in the grace period, even if a timely change of employer or change of status petition has been filed.  The NTAs appear to be triggered by an employer’s withdrawal of the H-1B approval notice after the employment ends.  Immigration and Customs Enforcement (ICE) has maintained that these individuals are not in lawful status. 

Given these reports, it makes sense for H-1B workers to file petitions as early as possible with the grace period, and under Premium Processing, if possible.

Contact us with questions concerning H-1B status.

Assistance is Available for Employers Attempting to Keep Up with Changes to TPS and Work Authorization

SAVE is an online service for government agencies to verify immigration status benefits or licenses.  SAVE was updated on September 16, 2025, to clarify that TPS was officially terminated for Nepal on August 20, 2025, and for Honduras and Nicaragua on September 8, 2025.  As a result, Employment Authorization Documents (EADs) with category codes A12 or C19 for beneficiaries from those countries are no longer valid on those dates. 

It has been difficult for employers to keep up with the many changes to TPS (and the accompanying EADs) that have been announced in recent months, especially for Honduras, Nicaragua, Venezuela, and Haiti. Below is a chart of the situation as it stands today (subject to change):

Contact us with questions about TPS and EADs.

USCIS Proposes a Weighted H-1B Cap Selection Process

On September 24, 2025, USCIS published, in the Federal Registry, a notice of proposed rulemaking (NPRM) that introduces a weighted H-1B cap selection process for the 2026 lottery. Public comments must be submitted within 30 days of the publication. The proposal will, essentially, favor beneficiaries with higher salaries. 

The proposed rule is a ways from becoming final. We will share updates as the proposal proceeds through the rulemaking process.