_de facto, if not de jure_If the courts won’t let the Trump Administration ban visas from certain countries, one way for it to react would be to simply just stop issuing the visas without calling it a ban.

In January, the Department of State suspended immigrant-visa (green card) issuance to nationals of 75 countries, claiming that they presented a heightened risk of becoming dependent on public assistance. On August 21, a federal judge struck down to policy, holding that DOS could not categorically refuse visas based on nationality when the immigration laws required case-by-case determinations. The court also set aside refusals based solely on that policy and sent those applications back for reconsideration.

DOS acknowledges that the restriction is no longer in effect, and has reacted by spending all of its time training officers on the new public charge screening procedures, instead of processing the cases that it had essentially frozen. In September, it asked the judge to pause her ruling, arguing that reconsidering the affected applications while introducing new screening procedures would burden DOS. The judge rejected that argument, noting that her ruling did not require new interviews or repeated public-charge assessments, which were additional steps the department itself had chosen to impose on itself.

So: can the applicants just sue DOS again to get them to start moving on their applications? Not exactly. They can sue over unreasonable delay, but for green card cases they must first show that there is still a legally-required act remaining that can be compelled. What DOS likes to do is to issue a “refusal,” which is basically “we’re not denying it outright, but rather just placing it into this little box called administrative processing,” at which point DOS can argue that it has discharged it’s due to adjudicate and that no legally-required actions remain. One must then essentially continue to poke the agency until they tire of the efforts and decide to take action. (Administrative processing and the doctrine of consular nonreviewability merit a much longer discussion.)

We previously reported on the different approaches that a few consular posts are taking to implement their public charge review, indicating that there is in fact some movement on this front.

_nobody would design this system_One of the most striking features of the immigration court system is its highly bureaucratic nature. For a real world example, contemplate Sally in marketing, who can’t finish a product launch until the product team sends the final copy. Her manager could keep scheduling meetings to ask whether she’s finished, but the sensible move would be to just set it aside until the product team has done its part.

Immigrants in removal proceedings often face a similar coordination problem, waiting for USCIS to process a filing that could largely determine the outcome of the court proceedings. Administrative closure is a procedure that lets the immigration judge take the case off the active calendar while that agency process unfolds. It doesn’t resolve anything; it just allows one part of the system to wait for another. In May 2024, the Biden Justice Department issued a regulation expressly authorizing administrative closure, allowing immigration judges to pause cases under specified standards.

The problem being, however, that USCIS or the Department of Labor can take years to work though a filing. On June 22, Texas sued to invalidate the regulation authorizing administrative closure. The Department of Justice, rather than defending its rule, agreed with Texas and the two sides obtained a court judgment striking it down that same day.

That left no original party willing to defend the regulation. On August 7, Baltimore, Columbus, New Haven, and Centro Legal de la Raza sought permission to join the case so they could appeal. The district judge denied intervention on August 21, finding that they lacked the concrete injury necessary to establish standing. They appealed and sought to pause the judgment, but the district court and Fifth Circuit declined interim relief.

The applicants then sought a stay from the Supreme Court. On October 27, the Court denied their request without explanation, leaving the judgment operative while the appeal proceeds. It did not decide that administrative closure is unlawful; it merely declined to suspend the lower court’s judgment. For now, closed cases remain closed until DOJ elects, on a case-by-case basis, to recalendar them. We recently discussed the explosion in processing times for family-based petitions before USCIS, leaving immigrants in court proceedings who are relying on such petitions with little choice but to sue USCIS to force action.

So a simple green card application now often entails three agencies and two distinct legal proceedings.

_lottery limbo_As we’ve covered in recent newsletters, a federal judge ordered DOS to restart the diversity visa 2027 lottery, with registration opening by November 1. However, the Ninth Circuit Court of Appeals stayed the preliminary injunction pending appeal, suspending the deadlines without setting replacement dates.

The problem is one of legal standing. The plaintiff seeking to reinstate the lottery, Red Eagle Law, filed the lawsuit on the basis of lost business from representing future lottery selectees. The Ninth Circuit held that this interest was not protected by the diversity-visa statute. The panel expressly declined to endorse State’s failure to open registration. We are now without either a final ruling that the administration may abandon the program or, in the alternative, a reopening announcement.

_on applying for admission_Crossing the border is a physical act; “admission” is a legal one. For someone who entered unlawfully and was much later detained, that distinction can determine whether a judge must hear their request for release.

The Fifth Circuit Court of Appeals recently held that such residents had no constitutional right to individualized bond hearings. One had lived in the U.S. for more than 22 years, another since 2011, and the third since 2012—roughly 14–15 years for the latter two. They sought hearings to establish whether they posed a danger or flight risk. The court ruled that their detention did not require that assessment, because they were still (legally, not literally) applying to be admitted.

The decision only binds federal courts in Texas, Louisiana, and Mississippi, and leaves open other challenges to other aspects of detention, including prolonged confinement. But its immediate consequence is stark. Because the circuit courts regularly split on these issues, we can reasonably expect to see it reach the Supreme Court at some point in the future.

_etc._Everyone flying out of the U.S. after tomorrow must attest that they haven’t been to Congo in the last 21 days. Employers with at least 50 U.S. employees, of whom most are in H-1B or L-1 status, must pay an additional $4,500 for L-1 extensions. DOS advises Americans to avoid Saudi Arabia while it orders non-emergency staff to depart.

Matthew Blaisdell, Esq.
Sunset Immigration PLLC
219 36th Street, Ste 511
Brooklyn, NY 11232
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November BulletinThe Visa Bulletin separates permission to file green card paperwork from eligibility for approval. Chart A (Final Action Dates) shows when a green card can be approved; Chart B (Dates for Filing) allows applicants to begin the final application stage earlier. USCIS decides which chart applicants adjusting status may use each month, but approval always depends on Chart A. Your priority date—generally the petition’s filing date, or the labor-certification filing date where required—must be earlier than the applicable cutoff.

November permits Chart B for all categories. Regarding Final Action Dates, most employment-based categories remain unchanged, though EB-2 for most countries advanced three months (January 1 to April 1, 2025), EB-3 by one month (May 15 to June 15, 2024), and EB-3 India by about three weeks (January 1 to January 22, 2014). Most family-based categories, however, leapt forward by one year: F1 from January 22, 2020 to January 22, 2021; F2B from August 22, 2019 to August 22, 2020; F3 from October 22, 2014 to October 22, 2015; and F4 from October 22, 2011 to October 22, 2012 (except for India).

TPS reprieveDespite the expiration of the Temporary Protected Status protections for over 100,000 Ukrainians and 1,800 Sudanese on October 19th, the Department of Homeland Security announced, in the most vague terms possible, that those who held TPS will “retain protection” (see USCIS alerts here for Ukraine and here for Sudan). The DHS made a similar claim regarding the nearly 200,000 Salvadorans whose TPS program expired in September, with details still forthcoming. It remains understood that those affected may remain and work in the U.S.; employers should retain copies of the alerts for I-9 purposes.

DV lottery updateWe covered the return of the diversity visa lottery, and its related mechanics, last week. While the modified preliminary injunction requires an announcement by October 29 and a 30-day registration period opening by November 1, 2026, the entry portal and DOS newsroom have yet to be updated as of the time of writing.

enforcementICE detained two U.S. citizens at gunpoint in Charlotte, sent a U.S. citizen to the hospital in Long Beach, and allowed a permanent resident to die in a cell in Laredo. Meanwhile, a bill is finally introduced to facilitate lawsuits by U.S. citizens for unlawful detention.

28 permanent residents are charged with voting- and naturalization-related offenses. In practice, these instances typically involve individuals who were unwittingly registered while attempting to do something else entirely, and who never actually voted.

not a coincidenceElections are upcoming, and citizenship approvals fell 72 percent compared with the same eight-month period last year. Backlogs of pending applications have nearly doubled since the start of the Trump administration. The adolescents running DHS social media appear tickled.

Matthew Blaisdell, Esq.
Sunset Immigration PLLC
219 36th Street, Ste 511
Brooklyn, NY 11232
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The lottery is back onThe diversity visa lottery offers a path to permanent residence for people from countries with relatively low immigration to the United States (that’s the ‘diversity’ part), who can register in the hopes of being randomly selected (that’s the ‘lottery’ part) in a process administered by the Department of State. A fixed number of visas are allocated for each fiscal year, and registration normally takes place roughly a year in advance. Those who are selected must complete the process before that fiscal year ends on September 30. Thus, the timing of the lottery is crucial in permitting selectees to process their applications. For example, DV-2026 registration opened October 2, 2024—almost a year before its visa year began.

The Trump administration had not opened registration for DV-2027, leading to a lawsuit filed in August in the U.S. District Court for the Southern District of California. Last week the court issued a preliminary injunction, ordering the DOS to run the 2027 program. Registration must open by November 1st, 2026, remain open for 30 days, selectees must be notified by December 3rd, and visas issued by September 30, 2027 (subject to availability).

As of now, registration has not opened, and DOS has not published anything identifying the electronic entry site, the participation requirements, or otherwise; their last update is about a year old. Any further delays will essentially guarantee that those selected towards the end of the lottery will not be able to process their applications, as the FY began on October 1, 2026. More here.

sanctuary and standingThe Brady Handgun Violence Prevention Act of 1993 required local law officers to run background checks for gun purchases. When sheriffs challenged that provision in Printz v. United States, the Supreme Court held that the federal government could not compel state or local officials to act on its behalf.

In New York City, unless a a judicial warrant has been issued for a foreign national, an agency may not hold that person for ICE to take them into custody. Nor may agencies provide a person’s location or release date, and city resources cannot be used for immigration enforcement (with exceptions).

In July 2025, the administration sued the city in the Eastern District of New York, alleging a violation of the Supremacy Clause in that it’s ability to regular immigration was hampered by city’s policies. Last week the EDNY dismissed the lawsuit, holding that “there is nothing within federal law that obligates states to participate in federal immigration enforcement or compels states to comply.”

As a threshold matter, it found that the administration lacked standing to bring the lawsuit given that, even if the city’s prohibitions were removed, the agencies would still be unable to comply with the administration due to the fact that city and state officers are not anyway authorized to make immigration arrests. Moreover, the mere inconvenience of the city provisions, which primarily involve allocation of its own resources, did not rise to the level of an unlawful conflict with the federal immigration scheme.

phone tree updateUSCIS updated its Contact Center page, specifying that a request made to the person who answers the phone, Tier 1, can address case-specific service requests, including expedite requests within USCIS jurisdiction, appointment rescheduling, missing notices or secure documents, accommodations, USCIS typographical errors, and withdrawal requests.

Requests that that require escalation to Tier 2 include requests to expedite a biometrics appointment, certain military matters, and requests for in-person document-service appointments. These are not resolved on the call; the Tier 1 office will submit the request for escalation, and the response may arrive by email or a call-back.

What remains missing was its greatest feature: it’s former, proprietary hold music, which does not seem to be discoverable anywhere. Though if someone were to search it’s historical customer-service telephone contracts or a records request seeking the audio file and any commissioning or licensing records, the newsletter would be immensely grateful.

In the meantime, we can still enjoy the widely-used Opus No.1 on YouTube, previously utilized by the National Visa Center, among others

of Microsoft, medals, and moronsOn October 8, the Trump administration suspended Microsoft’s access to the PERM green-card sponsorship process, then a few hours later awarded its immigrant CEO, Satya Nadella, the National Medal of Technology and Innovation. Last week, Microsoft president Brad Smith clearly disputed the administration’s claim that the company had laid off U.S. workers in favor of immigrants. In regards to its H-1B employees, the company states that the majority of its filings are either extensions or changes of employer: not new visas for new workers. PERM, meanwhile, already requires a labor test of the U.S. job market for each case in which the employer must first advertise the job to U.S. workers before being able to proceed with the sponsorship.

If the administration is unhappy with the manner in which the labor market test is conducted, it could attempt to update the 20 year-old regulations or push Congress to update the 60 year-old statute that introduced the labor certification. Though in all likelihood it will continue to lash out at the same companies it relies on to prop up the stock market.

Matthew Blaisdell, Esq.
Sunset Immigration PLLC
219 36th Street, Ste 511
Brooklyn, NY 11232
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40 countries you won’t believe protect human rights

document everything

We’re getting a glimpse into how the embassies will start implementing the administration’s new public charge policies and it’s totality-of-circumstances framework.

Of the various grounds for finding that a person is inadmissible to the U.S., that for “public charge” is based on a finding that the likelihood that an applicant will become dependent on government support. Of the factors to be considered, consular officers will be looking at age, health, family circumstances, financial resources, education and skills.

Most family-based applicants must provide an Affidavit of Support, generally Form I-864, from the petitioning relative, supported by tax returns and other financial evidence. Sponsors generally must show income of at least 125% of the federal poverty guidelines for their household size. If their income is insufficient, qualifying assets, household income or a joint sponsor may help meet the requirement.

Most employment-based applicants do not need this affidavit, although exceptions apply when a qualifying relative filed the petition or owns a significant share of the petitioning business. That exemption does not remove them from public-charge review. Nor does a sufficient affidavit automatically resolve the inquiry for a family-based applicant.

It appears that each consular post will have room to develop their own policies, as the American Immigration Lawyers Association has obtained questionnaires from several U.S. embassies, each with a different emphasis. Some require the applicant to respond to explain housing, expected employment, education and licensing, anticipated salary, health-insurance coverage and premiums, household assets, and liabilities. Others go further into medical needs, household dependents, after-tax income, debts, past or current public assistance, government-funded institutional care, and a joint sponsor’s prior use of benefits.

Those who are employed (or are the recipients of an employment-based case) should be prepared to provide a simple description of their role, including starting date and compensation, along with how they will be obtaining health coverage, housing, and what their access to other resources will be. Best practice would be to document each of these factors. Failure to adequately do so may result in the officer’s request of a bond.

“Go after anybody”

Following increased pressure from ICE leadership on officers to increase quotas for arrest, this week saw a surge of enforcement surge across the United States, including sweeps throughout agricultural areas in California, particularly San Joaquin Valley.

Guidance for employers remains unchanged: designate a point person to communicate with counsel, clearly mark off nonpublic from public areas, preserve relevant records (including Forms I-9), and train staff on how to avoid either obstructing or improperly divulging information.

one way to end “chain migration”

A family-based case involves two major parts. The first steps establishes the basis upon which the foreign national can then, in the second step, apply for the green card. The foundation is the Petition for Alien Relative (on Form I-130) filed by the U.S. citizen or permanent resident on behalf of their foreign relative.

Once it has been established that there is a valid relationship within a particular category (e.g., minor child of permanent resident, parent of adult U.S. citizen, etc.), and an immigrant visa (green card) is available in that particular category, then the foreign national can move forward with their own application.

In certain instances both stages can be initiated the same time in a “1-step” filing, through a process called adjustment of status. But the traditional route, including all cases run through a U.S. consular post (commonly referred to as “consular processing”), requires that the I-130 be approved before the next stage can be initiated. These typically involve circumstances in which the foreign national is residing outside of the U.S.

Such “stand alone” I-130 petitions have traditionally been processed at a USCIS regional service center. If approved, the case will typically proceed to National Visa Center (en route to the consular post). If the person is eligible for adjustment of status, the approved petition is sent to the relevant USCIS local field office.

However, it has become apparent that, without any announced policy, many of these I-130 filings are now being sent to local field offices for interviews, with predictably variable results and timeframes.

There are a number methodologies for estimating processing times, but the common metric used on the USCIS website is backwards-looking: of the cases being completed on a particular day, how long ago were 80% of them filed? Over the last 5 years, an I-130 filed for a the spouse or parent of a U.S. citizen took 12.8 months. Today that number is 25.8 months for a service center: and 83.5 months for the average field office. Which essentially means that nobody really knows how long it will take a case to go through a particular local office: timeframes for standalone I-130 petitions at field offices are not posted. Also unknown: what does a marriage interview look like when one spouse is overseas?

a listicle from the BIA

The Board of Immigration Appeals, in Matter of B-S-A-N-, essentially precluded asylum claims from citizens of developed democracies with a record of protecting human rights: unless the issue is to do with extraordinary national-security or foreign-policy considerations. It turns out there are exactly 40 of them. The BIA in fact created a list that includes all the EU members, the UK and a few of its former colonies, Japan, and South Korea: San Marino and Liechtenstein both received shout outs. (The reasoning was partially based on the fact that an EU citizen can move throughout Euro Zone to avoid persecution in any one member state.) Claims related to these countries can be essentially dismissed before a full evidentiary hearing.

This case involved a dual-citizen of France and Gabon who expressed fear of retaliation for her family’s opposition to Gabon’s former ruling party, including by Gabonese agents in France, despite the fact that her sisters lived in France without harm.

this week in maddening

Over 500 U.S.citizens have been detained under this administration by an agency purchasing shock gloves, lying covering up its actions, and looking to charge international students $70K for to work. But a least a woman shot five times is suing.

Matthew Blaisdell, Esq.
Sunset Immigration PLLC
219 36th Street, Ste 511
Brooklyn, NY 11232
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**The 100K fee takes another L. **

1 win, 2 losses for the proclamation fee

The Trump administration remains blocked from collecting the $100,000 payment required for covered H-1B petitions for workers outside the U.S.

You may recall thinking that this already happened, and in fact back in July, we discussed the First Circuit’s order, in California v. Mullin, where the district court had found that the payment amounted to a tax imposed without congressional authorization and that the agencies’ implementation violated the Administrative Procedure Act. The First Circuit focused on the government’s failure to show that Congress had authorized this kind of payment.

The original proclamation was set to expire on September 21, 2026. Undaunted, the administration issued another proclamation on September 18, extending the requirement through September 21, 2027.

On September 30, the Northern District of California added a second barrier to collection. In Global Nurse Force v. Trump, the court blocked the agency policies implementing both proclamations. It did not enjoin the proclamations themselves.

The California court focused on the administrative process the agencies had skipped. A presidential directive does not excuse agencies from considering alternatives, accounting for the interests of those who relied on existing policies, or following required notice-and-comment procedures. The court found the plaintiffs likely to succeed on those claims without deciding whether the proclamation imposed an unauthorized tax.

We’ve yet to cover the third major lawsuit making the rounds in the District of Columbia, where Chamber of Commerce v. DHS upheldthe implementation of the proclamation pursuant to the President’s authority to regulate the admission of foreign nationals under INA § 212(f).

The current scorecard reads:

• U.S. District Court for the District of Massachusetts: A final judgment against the agency policies remains in effect while the administration appeals to the First Circuit.
• U.S. District Court for the Northern District of California: The court granted preliminary relief against implementation under both proclamations. The case continues, and the administration can appeal to the Ninth Circuit.
• U.S. Court of Appeals for the D.C. Circuit: The district court upheld the policy. The [Chamber’s appeal](https://www.uschamber.com/cases/labor-and-employment/chamber-of-commerce-v-dhs-2) is pending before the D.C. Circuit.

Upshot: the payment remains blocked while the dispute winds its way through the various judicial circuits. Should there remain a split between them, it will almost inevitably arrive before the Supreme Court.

Meanwhile, having been so chastised by the First Circuit, the administration’s proposed $103,265 fee for cap-subject petitions proposed to actually follow the rulemaking process, albeit under different claimed authority. Thus, public comments must be considered before DHS may decide whether to finalize, revise, or abandon it.

More background here and here.

Less fun, more functional

Thirteen years after CBP began replacing paper I-94 cards for air and sea arrivals, and four years after announcing electronic I-94s at land borders, the agency is ending routine passport admission stamps during primary inspection. Stamps may still be used during secondary inspection, in limited immigrant-visa processing, or upon a traveler’s specific request. CBP says the change will reduce processing times and operating costs.

The I-94, not any notation made on a passport, is the record that actually controls a person’s permitted period of stay in the U.S. and the classification of their manner of entry. For derivative family members (typically a spouse or child of a primary visa holder), it is also the primary evidence of employment authorization; the bulletin notes that might also be used for banking and school purposes.

The I-94 record can be found here, using the information contained on the passport used to enter. And in fact, one should check this information soon after entering, because mistakes are not terribly uncommon, and can be difficult to fix long after the fact. (Corrections are made a local ports of entry, typically within Deferred Inspection.) Printing and keeping it on hand is also not a terribly bad idea in the current environment of “papers, please.”

But a downloaded I-94 is unlikely to inspire the affection once reserved for a passport full of stamps.

Matthew Blaisdell, Esq.
Sunset Immigration PLLC
219 36th Street, Ste 511
Brooklyn, NY 11232
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Some days are just later than others.

Getting specific about deadlines . . .

When filing your taxes with the IRS, it’s pretty simple: if the deadline falls on a weekend or holiday, it gets moved to the next business day. If the deadline falls over Labor Day weekend, it is moved to Tuesday. This is generally how the regulations define a “day” for immigration filing purposes.

The general rule in immigration is to never keep a rule simple when you can always change it to “it depends.” Under this administration’s guiding principle of death-by-a-thousand-cuts, that becomes “how can we make things at least slightly harder for immigrants and their lawyers?”

An update to the policy manual limits the next-business-day rule to instances when a statute, regulation, or form instruction defines the filing period in a specific number of days. Effective October 23, 2026, a filing that requires the applicant to _still meet an eligibility condition _will be deemed untimely if filed on the business day following the deadline. The question to ask then “Is this a period counted in days, or a condition that must still be true when I file?” (Electronic filings are treated as received when submitted, thus don’t get the benefit of the next-business-day rule.)

For example, the time to file a motion or appeal on Form I-290B is a filing period measured in days. The ordinary deadline is 30 days after the decision, with three additional days when the decision was mailed. If the last day falls on a weekend or legal holiday, the filing period generally runs to the next business day.

An age limit works differently. If a benefit requires an applicant to be under 21 when filing, a 21st birthday on a Sunday does not preserve eligibility through Monday. The application would need to be filed while the applicant is still under 21.

One must now classify each deadline before relying on a weekend or holiday. Deadlines for filing a response or appeal continue to keep next-business-day treatment. Deadlines related to age/birthdays, expiration of status conditions, and things that would generally cut off eligibility now require a separate analysis and should probably be filed earlier.

. . . and birth tourism . . .

Between 2017 and 2020, a man on Long Island advertised to pregnant Turkish women on Facebook, charged them about $7,500 each, and housed them in properties he called “birth houses.” The scheme caused more than $1 million in fraudulent Medicaid payments. He was sentenced in 2022.

That case illustrates the commercial operations targeted by a new State Department visa restriction policy. The policy reaches people who knowingly engage in or facilitate travel to the United States for the primary purpose of securing U.S. citizenship for a child through birth here, including facilitators who have never traveled to the United States themselves.

The department invokes section 212(a)(3)(C) of the Immigration and Nationality Act (INA), which concerns entry that the secretary of state has reasonable grounds to believe would have potentially serious adverse foreign policy consequences. The announced targets include owners and managers of commercial networks, people who coach applicants to commit visa fraud, and medical providers who knowingly assist the travel and fraudulent use of Medicaid.

To this end DOS also launched an online portal for anonymous submission of specific instances of visa fraud generally, with specific examples including fabricated job offers, shell companies, and sham marriages.

. . . and trafficking proceeds.

The INA can make someone inadmissible for knowingly benefiting from a family member’s drug trafficking or trafficking in persons within the previous five years. The human-trafficking provision includes an exception for benefits received as a child.

That five-year limit is statutory. USCIS cannot extend it through a policy update to find someone inadmissible under those provisions for conduct outside the window. But an officer deciding whether to grant a discretionary benefit can consider a broader range of adverse facts.

A new USCIS policy alert says officers may consider benefits received from a trafficker even after the statutory five-year period has passed. It also addresses benefits received from a former spouse. In other words, conduct too old to trigger these particular inadmissibility grounds may still affect a discretionary decision.

The revised Policy Manual chapters explain the grounds, evidence, burdens of proof, and possible relief concerning drug trafficking, trafficking in persons, and money laundering.

enforcement

Third-country removals again reaches SCOTUS, this time addressing fear of persecution. ICE and other federal immigration agencies have shot 21 people so far in this Trump administration. And people are disappearing after their deportation orders.

Matthew Blaisdell, Esq.
Sunset Immigration PLLC
219 36th Street, Ste 511
Brooklyn, NY 11232
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stricter scrutiny

The Department of State wants access to your Facebook profile . . .

Since June 2025, the Department of State has gradually expanded its online-presence review to applicants for A-3, certain C-3, F, G-5, H-1B, H-3, H-4, J, K, M, Q, R, S, T and U visas. Applicants in these categories must make their social-media profiles public or open so that consular officers can review them.

Beginning October 1st, all applicants (and dependents) in the I or TN categories must now also set all their social media profiles to public/open prior to their interviews. (Canadian citizens generally do not need visas to seek admission in TN status. The expanded review therefore applies to Canadians only when they actually apply for a visa, rather than whenever they seek TN admission at the border.)

DOS has published neither a processing timeframe nor a clear evidentiary standard for these reviews; compliance does not preclude the possibility of administrative processing.

. . . the Department of Homeland Security wants access to your credit report . . .

The new public-charge policies discussed a few weeks ago took effect for adjustment-of-status applications filed on or after September 18. The changes include broader scrutiny, revised forms and the possible use of public-charge bonds.

USCIS may now examine the applicant’s age; health; family status; assets, resources and financial condition; education and skills; and any other information it considers relevant. It may also consider any means-tested public benefits received on or after September 18. Benefits received before that date are subject to narrower rules.

Employment-based applicants generally remain subject to the public-charge ground even though they ordinarily do not require an affidavit of support. A USCIS bulletin specifically identifies priority workers, advanced-degree professionals, skilled workers, investors, religious workers and international broadcasters among the covered categories.

If USCIS finds an applicant inadmissible solely because the applicant is likely to become a public charge, it may invite the applicant—through a Notice of Intent to Deny—to post a cash or qualifying surety bond using Form I-945. It will not accept the form unless it has first invited the applicant to submit it.

The bond amount is discretionary and determined via a case-specific, totality-of-circumstances review by a USCIS officer who will estimate how much government assistance the applicant might receive during the next five years. (Expect a lot of variance.) The bond may be cancelled via submission of Form I-356 after five year of permanent residency, or otherwise upon the recipient’s death, naturalization, or abandonment of residency.

. . . and ICE continues to do awful things.

300 Koreans are suingover the Georgia Hyundai-LG raid. Agencies are redacting documents that would otherwise prove legal status. And This. Must Stop.

Matthew Blaisdell, Esq.
Sunset Immigration PLLC
219 36th Street, Ste 511
Brooklyn, NY 11232
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how will this work?

A “grace period,” in the parlance of immigration law, recognizes a basic fact: foreign workers cannot always leave the country the moment their U.S. employment ends. They may need to settle matters involving housing, transportation, possessions, insurance, and, of course, work. They may also seek to change or extend their status or apply for adjustment of status. Or they may finally take that trip to visit friends in New Hampshire or wherever.

Also, absent Star Trek-style transporters, people cannot physically teleport home when they clock out on their last day. Moving bodies and belongings from a dwelling to an airport does, in fact, take some small amount of time.

Recognizing this reality, federal regulations provide limited grace periods during which certain nonimmigrants are not considered to have failed to maintain status solely because their qualifying employment or activity has ended. For workers in several employment-based classifications, the available period is up to 30 or 60 days.

DHS has now proposed deleting the regulation at 8 C.F.R. § 214.1(l)(2), which provides that grace period to people in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN status, as well as their dependents. Comments are due November 10. DHS must then review significant comments and decide whether to revise, finalize, or abandon the proposal. If it proceeds, it will publish a final rule with an effective date, after which people will sue them.

If implemented in its current form, workers who fail to teleport on their last day will be treated as having failed to maintain status (unless they have already been approved for a change, extension, or adjustment of status), subjecting them to deportation proceedings and possible detention.

While we find it unlikely that the rule will survive litigation in its current form, employers and foreign workers should assume that, at the end of this process, their grace period may well be truncated from its’ current duration.

duration of status endures (for now)

There are visas, and there are periods of authorized stay; these are not the same. A visa is a stamp placed in a passport by a U.S. consular post and presented to Customs and Border Protection when its holder requests admission in a particular status. The authorized period of stay, meanwhile, appears on the Form I-94 that CBP creates upon admission.

For various reasons, the dates on these documents do not always align. For many international students, exchange visitors, and foreign-media representatives, the I-94 has traditionally stated “duration of status,” or D/S. Rather than supplying a fixed expiration date, D/S allows the person to remain while complying with the terms of the applicable academic, exchange, or media program.

As we covered in July and again on September 1, a final rule replaced D/S with fixed admission periods for F students, J exchange visitors, and most I foreign-media representatives to begin today, September 15. People who would have needed additional time would have been required to apply for an extension of stay or depart and seek readmission. (The prior newsletter describe that process in a bit more detail.)

And then yesterday afternoon, the U.S. District Court for the District of Massachusetts issued an injunction blocking implementation of rule.

The court found that the plaintiffs (organizations representing schools, journalists, and related) were likely to succeed in their claim that the DHS acted arbitrarily and capriciously by failing to: conduct a reasoned cost-benefit analysis; meaningfully consider less burdensome alternatives; answer significant public comments; or to demonstrate a rational connection between fixed admission periods and its stated goals of preventing fraud and protecting national security.

Meanwhile, the court found that the institutions have been substantially harmed by a plummeting declines in national applications, coupled with enrolled students withdrawing from school, greatly increased compliance costs, and other harms.

The gist being: you can’t completely circumvent the traditional guidelines for rule making with slop and a handful of anecdotes: particularly where the damage is so acute.

As a matter of pure caution, those in F, J, or I status may seek alignment across Form I-94 and their I-20 or DS-2019 issued by their school or exchange program. And check the pending litigation here and here. Expect the matter to continue to be appealed regardless of the ultimate decision from the District Court. But for the near future, D/S remains the rule.

H-2B

We previously discussed the extraordinary demand for H-2B visas, which cover temporary, nonagricultural work. Employers requested 51,158 positions beginning October 1, 2026, against a first-half allocation of 33,000—more than 1.5 requested workers for every available visa.

And by “requested,” we mean that employers may already have recruited workers, obtained labor certification, and planned an entire season before learning whether a visa number will actually be available. Missing out can have significant consequences for seasonal businesses.

USCIS announced that September 4 was the final receipt date for new cap-subject H-2B petitions requesting employment start dates before April 1, 2027. Later filings in that category will be rejected. Cap-exempt petitions—including certain extensions and employer changes, qualifying work in the fish-roe industry, and qualifying employment in Guam or the Northern Mariana Islands—may still proceed.

The next major filing window is expected around January 1–3, 2027, for employers seeking April 1 start dates. Those applications will compete for the remaining 33,000 visas allocated to employment beginning during the second half of FY2027, from April 1 through September 30.

H-2A

We touched on the replacement of the H-2A Adverse Effect Wage Rate, or AEWR, last week. Beneath the question of whether the Department of Labor will seek back wages under its new formula lies another: may DOL obtain monetary remedies through its own administrative process, or must it go to an independent federal court?

The Supreme Court will hear a case on November 10 addressing whether the Constitution permits DOL to adjudicate monetary claims against H-2A employers and whether 8 U.S.C. § 1188(g)(2) authorizes it to do so. The dispute arose after an administrative law judge found that a family-run farm owed more than $500,000 in back wages and penalties.

The case does not decide whether H-2A employers must follow wage and worker-protection rules. It asks who may determine and impose the monetary remedy: an administrative judge within the executive branch or an Article III federal court. The answer could affect not only agricultural employers, but also the broader balance between federal agencies and the courts that review them. We favor an immigration-enforcement system that is less politicized and less susceptible to changing agency priorities. Here’s hoping for some movement in that direction.

improvise

After massive earthquakes struck El Salvador in 2001, the United States designated the country for Temporary Protected Status, or TPS. The designation allowed eligible Salvadorans already here to remain and work because conditions prevented their safe return. Roughly 25 years later, about 200,000 people remain covered.

Because Salvadorans remit close to $10 billion a year to their home country—about 1/4 of El Salvador’s GDP—their ability to remain here has always been priority for the Salvadoran government.

Because the current U.S. administration is torn between deporting everyone as quickly as possible while also maintaining strong ties to the Salvadoran government, and because no one seems to be actually running the show with any real plan, TPS for El Salvador expired September 9th: yet with no new expiration date, effort to initiate enforcement, or plan for providing any other form of relief or continuation.

Thus, USCIS has announced that affected individuals may in fact stay and work here “until further notice,” despite not having any valid documents or any way for employers to comply with their I-9 and E-Verify requirements.

Updates from USCIS can be found here and from E-Verify here.

some headlines

ICE Opens a Tip Line to Report Undocumented Truck Drivers, ICE retreats from some warehouse detention plans as lawsuits mount, ICE Sends Legal Immigrant to Guantánamo Bay, and ‘Alligator Alcatraz’ Used Small Cages as ‘Calming Areas,’ Report Says.

court things

Street racing is dangerous, kidnapping a president constitutes a change in country conditions conditions, evidence of torture doesn’t have to be quantitative, and they can’t just mail the court notice to your house if they are keeping you in jail.

This newsletter is for general information only and is not legal advice.

Matthew Blaisdell, Esq.
Sunset Immigration PLLC
219 36th Street, Ste 511
Brooklyn, NY 11232
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more public charge, more petulance

They’re checking on your credit . . .

Late on August 31, US Citizenship and Immigration Services (USCIS) released new editions of the Affidavit of Support—Forms I-864, I-864A and I-864EZ. These forms are used to show that an intending immigrant has adequate financial support and is unlikely to depend on government assistance. Although the new forms largely resemble their predecessors, they authorize USCIS to obtain information, including credit reports and scores, about a financial sponsor from consumer-reporting agencies.

USCIS initially provided no grace period: filings submitted from August 31 were required to include the new editions. The abrupt change caused considerable disruption. Affidavits of support can require extensive financial information and supporting documents, particularly when a household member or joint sponsor is involved. The rollout also came amid increased scrutiny of financial sponsorship and the public-charge ground of inadmissibility.

On September 3, the American Immigration Lawyers Association and an immigration law firm filed a complaint in the US District Court for the District of Columbia. They alleged that the immediate change violated the Administrative Procedure Act and the Paperwork Reduction Act. The next day, USCIS reversed course and announced that the previous editions could be used through September 30. From October 1, USCIS will treat an outdated affidavit as missing initial evidence: rather than rejecting the entire application at the mailroom, it will accept the filing and request the new form. All of which it could have done up front, precluding the need for a very predictable lawsuit.

. . . and your benefits.

The Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), the welfare-reform law enacted in 1996, requires a state participating in Temporary Assistance for Needy Families (TANF), or in certain arrangements involving Supplemental Security Income (SSI), to notify federal immigration authorities when “the State knows” that someone is unlawfully present.

In 1988, the Department of Justice’s Office of Legal Counsel (OLC) interpreted this requirement to apply only to the state agencies actively administering the programs, and not all state agencies. Last week, the OLC withdrew this interpretation, stating that the reporting duties of all component agencies extended to TANF and SSI income.

How this shakes out will be interesting. The Department of Justice has warned that future non-compliance could jeopardize federal funding. OLC also rejected the view that an agency can have the necessary knowledge only after a formal immigration determination. Its opinion gives examples of information that may establish knowledge, but it does not supply a complete operating procedure for state agencies.

OLC opinions bind the executive branch, not states or courts directly. Federal agencies must now translate the interpretation into grant agreements, reporting procedures and compliance guidance. Until that happens, state governments, service providers and non-citizens should distinguish OLC’s legal interpretation from the specific procedures, data-sharing systems and enforcement timelines that may eventually follow.

Birthright citizenship wins another round (for now).

In June, the Supreme Court held that children born in the U.S. to parents, without legal status, are U.S. citizens: invalidating the Trump Administration’s executive order seeking to deny them citizenship. The Administration very shortly thereafter published another order targeting a somewhat narrower class of individuals, focusing on instances of purported “birth tourism” and other circumstances.

In response, the same plaintiffs who challenged the first order duly challenged the new one, and the District of Maryland held that the Administration cannot enforce the order until the new round of litigation concludes. The court found that the Administration is likely to lose in the end, as the group of people targeted in this order is basically the same as the first order: which was held to be unlawful. Meanwhile, litigation of the new order will continue through the federal court system until likely landing back at the Supreme Court.

DOL begrudgingly agrees to revise it’s H-2A adverse wage rate. Maybe.

The H-2A program allows farms to hire temporary foreign workers when sufficient US workers are unavailable. To prevent this from depressing domestic wages, employers generally must pay at least an Adverse Effect Wage Rate set by the Department of Labor. DOL cannot randomly pick a number: its methodology must be reasonably designed to protect the wages of similarly employed US workers.

Last year, DOL adopted an interim methodology that substantially changed how it calculated these rates. Among other things, it replaced a farm-specific wage survey with data that largely excluded workers employed directly by farms, placed an estimated 92% of H-2A jobs in a lower wage tier, and reduced wages to reflect the value of employer-provided housing. Most of these changes took effect without the usual notice-and-comment process.

On August 26, the US District Court for the Eastern District of California held the methodology unlawful and ordered DOL to develop and publish a replacement promptly. To avoid leaving the programme without an operative wage floor, however, the court allowed the existing rates to remain in force temporarily.

In a responselikely written by a first-year law student, DOL did not concede that its methodology was unlawful, waive its right to appeal, or accept that employers would ultimately owe back wages. It nevertheless said that it would develop and publish a replacement methodology. It also warned employers that wages paid from September 2 until the replacement rates are published might later have to be adjusted if the new rates are higher. For now, employers must continue paying the existing rates and preserve the records needed to calculate and deliver any eventual adjustment.

Pass a new law already

There are 1.2 million people who have been sponsored by a U.S. employer that remain waiting in line for an employment-based green card, largely due to the fact that we last capped the number of visas available back in 1990 and are incapable of conducting any effective lawmaking on this topic.

This newsletter is for general information only and is not legal advice. Consult an attorney about your specific situation.

Matthew Blaisdell, Esq.
Sunset Immigration PLLC
219 36th Street, Ste 511
Brooklyn, NY 11232
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What’s another $103,265 for an application?

Blocked from being able to collect $100,000 for H-1B beneficiaries overseas, the Department of Homeland Security is now trying to impose the fee instead on the vast majority of new H-1B petitions at the time of filing.

The notice of proposed rulemakingimposes a $103,265 fee on every cap-subject petition, including those eligible for the advanced-degree exemption. These are the petitions that count towards the annual limit: 65,000 for workers with at least the equivalent of a US bachelor’s degree, plus 20,000 for those with a qualifying US master’s degree or higher. They generally must first pass through the H-1B lottery.

The proposal would not apply to cap-exempt petitions. These do not count towards the annual limit, usually because the employer is a university or qualifying research organization, or because the worker has already been counted against the cap.

he earlier $100,000 payment was imposed by presidential proclamation. This time DHS is using notice-and-comment rulemaking, under which a federal agency publishes a proposed regulation and allows the public to respond before issuing a final rule. DHS claims it is needed to fund the government’s administration of the immigration laws through various Departments.

The fee must be paid at the time of filing, included with all other USCIS government filing fees H-1B fees, already between $460 (for a qualifying nonprofit organization filing a cap-exempt or extension petition without premium processing) and $10,345 (for a large, H-1B-dependent corporation filing a first-time, cap-subject petition utilizing premium processing). (And then, of course, there’s paying the lawyers.) More here.

Public comments are due by September 24. DHS must then review them before publishing any final rule. Litigation will follow. The rule will be scaled back. Tantrums will ensue. Time is a flat circle.

**Embassies start again. And stop again. And start again. **

Last week we covered a federal-court ruling ending the State Department’s ban on issuing immigrant visas to nationals of 75 countries deemed at “high risk” of relying on public benefits.

On Friday, DOS announced that the pause was no longer in effect. While under the ban applicants had previously been able to schedule and attend their appointments, DOS would not issue their green cards. Thus, those who departed the U.S. to attend their interview risked being stranded indefinitely.

Then, right after announcing the end of the pause, DOS suddenly cancelled all interviews at all embassies, asserting that they needed time to implement the new public charge policies we also covered last week. Though as of this week it seems that certain embassies are reaching out to reschedule individuals who had been waiting.

Outstanding questions include: how long the pause will last; how long applicants may have to wait for decisions after their interviews; what additional evidence they may be asked to provide; and what standards they will have to meet before their visas are issued.

faster for families, slower for employers

The September visa bulletin shows shorter waits in several family-sponsored categories for applicants outside Mexico and the Philippines. The largest advance is in F-3, for married sons and daughters of US citizens. Employment-based categories, however, did not advance at all.

Why the discrepancy? The State Department says that the administration’s restrictions—including the 75-country pause discussed above—have reduced immigrant-visa issuance. That has left more numbers available for applicants from other countries, allowing filing and final-action dates to advance.

Immigrant visa issuance rates for aliens from certain countries have decreased in light of various actions the administration has taken . . . Consequently . . . dates for filing and final action dates have been advanced across various immigrant visa categories throughout recent months. Note that as additional immigrant visa demand materializes, or administration actions are amended, retrogression may be necessary in the upcoming months to keep issuances within annual limits.

DOS also warns that EB-1 India and EB-2 worldwide could become unavailable or fall backwards before the end of the fiscal year (and the reset of visa availability) on September 30th).

be kind to your neighbors

All pending and newly-filed applications for naturalization may be subject to neighborhood investigations, per an update to the USCIS Policy Manual. USCIS may (but is not required to) investigate “the vicinity of an alien’s place of residence and employment and include at least the 5-year period prior to the filing of the alien’s naturalization application” (more here).

Enforcement

200,000 tourist visas are about to be revoked, targeting asylum-seekers, and Mexico pushes for investigations in to the deaths of 17 migrants in ICE custody.

Matthew Blaisdell, Esq.
Sunset Immigration PLLC
219 36th Street, Ste 511
Brooklyn, NY 11232
Book appointment