Many employers, too often and regrettably, view immigration policy as something that happens to them. A final rule appears in the Federal Register, effective dates are announced, and mobility and compliance teams begin assessing the consequences. By that point, however, an important opportunity has passed.

The federal rulemaking process gives employers, trade associations, and other stakeholders a chance to influence how immigration regulations are designed before they become final.

A public comment (co-authored by this blogger, Kevin Andrews, and Jonathan Micale), submitted on October 13, 2026 in response to DHS and USCIS’s August 11, 2026, mandatory electronic filing interim final rule, illustrates why regulatory engagement belongs alongside workforce strategy and compliance planning.

The comment applauded the goal of modernizing immigration processing. It expressly acknowledged the benefits of electronic filing, including reduced paper handling, faster receipting, and improved agency efficiency. It then addressed a more fundamental question.  Can USCIS’s existing online systems accommodate the way employers, lawyers, and families actually use the immigration system?

The comment identified specific concerns involving employer-sponsored petitions, attorney-submitted filings, family applications with co-applicants, and high-volume business workflows. It proposed detailed regulatory changes to address those concerns while preserving the agency’s modernization objectives.

That type of engagement illustrates an often-overlooked reality. The purpose of commenting on a proposed rule is not merely to object. Effective comments identify operational consequences, supply evidence, suggest alternatives, and help agencies understand how regulations will function in the real world.

This was one of the themes discussed in Vialto’s October 15, 2026 Prepare, Don’t Predict webinar. Employers frequently devote significant resources to planning for what the government may do next. Equally important is identifying opportunities to influence the decision-making process before the government acts.

Comments matter because agencies are generally expected to address significant issues raised during rulemaking. Concerns involving implementation burdens, operational feasibility, economic impact, alternatives, and unintended consequences often require a substantive response. The more developed the administrative record becomes, the more difficult it is for agencies to ignore practical realities encountered by employers and other stakeholders.

The benefits extend beyond the agency’s initial decision.

A robust comment record can slow the pace of adverse regulatory change by requiring agencies to evaluate evidence, consider alternatives, and explain their reasoning. That additional process often provides employers valuable time to assess risks, adjust compliance programs, budget for new requirements, communicate with affected employees, and develop contingency plans.

The administrative record may also become important if, as often happens, litigation follows. Federal courts reviewing challenged regulations generally examine the record developed during the rulemaking process. Questions about whether the agency considered significant comments, evaluated reasonable alternatives, assessed economic impacts and reliance interests, or adequately explained its decision may become central issues in later judicial proceedings. Well-supported comments therefore serve two purposes. They may influence the rulemaking itself, and they may preserve issues for judicial review if the regulation is challenged later.

Several legal frameworks make public comments more than a policy exercise. Thoughtful submissions can identify issues under the Administrative Procedure Act, the Regulatory Flexibility Act, and the Paperwork Reduction Act that agencies may need to address before finalizing a rule. The mandatory e-filing comment raised issues under each of these statutes, arguing that DHS should more closely examine the practical effects of the proposal on represented parties, businesses, and smaller stakeholders.

Submitting comments, however, is only one option.

Employers often engage through industry associations, chambers of commerce, professional organizations, and business coalitions. Sign-on letters, coalition comments, associational litigation, and amicus briefs can allow companies to contribute expertise and support broader policy positions without assuming a highly visible public role. In many cases, trade groups and associations are particularly effective because they can aggregate data and operational experience from an entire industry.

Employers have opportunities to influence immigration policy long before a rule becomes final. Monitoring proposed regulations, submitting comments, supporting coalition advocacy, and participating in strategic litigation can help shape the legal and operational framework that ultimately affects their workforces.

The most effective organizations do more than prepare for regulatory change. They engage while the record is still being written.

The most consequential change in legal immigration is receiving remarkably little attention. It is not a single executive order, policy memorandum, court decision, or rulemaking. It is the gradual transformation of legal immigration from a system built around discrete petitions or applications into one built around permanent records, continuous vetting, and expanding discretion.

For decades, a foreign national’s interaction with the immigration system occurred at identifiable moments. A work-visa petition was approved. A visa application was considered and an interview conducted. A PERM labor certification application was filed. An adjustment application was adjudicated. Each filing addressed a specific question at a specific point in time.

That structure still exists on paper. In practice, something different is emerging.

Information that once remained largely within a particular filing or agency increasingly moves across institutional boundaries. USCIS, the Department of State, CBP, ICE, DOL, and other agencies possess growing technical and legal mechanisms to compare information over time and across systems. USCIS’s own descriptions of its evolving screening and vetting efforts reflect this broader shift toward ongoing review rather than isolated eligibility determinations. See USCIS’s announcement on strengthened screening and vetting.

As a result, every filing begins to take on a second life. A prevailing wage request, PERM application, visa application, H-1B petition, adjustment filing, naturalization application, Form I-9, or E-Verify record may serve its immediate purpose today. Years later, it may also become evidence in a different proceeding involving a different agency reviewing a different question.

That development creates a challenge that receives far less attention than fraud prevention or national security screening. Immigration records often reflect changing circumstances rather than inconsistencies. Employees are promoted. Companies reorganize. Job duties evolve. Work locations change. Compensation structures shift. Corporate entities merge, split, and rebrand. Information that was entirely accurate when submitted may look different years later when examined without the surrounding context.

The risk is not necessarily that the original filing was wrong. The risk is that a later reviewer may see only the discrepancy.

USCIS itself recognizes that evidence submitted with one benefit request may remain relevant in later proceedings. The agency’s discussion of evidence, administrative records, and adjudicative files makes clear that materials gathered during one stage of the immigration process may continue to matter long after the original filing has been approved. See the USCIS Policy Manual chapter on Evidence.

The same dynamic appears in the federal government’s increasing interest in social media and other nontraditional sources of information. In April 2025, DHS announced expanded social media screening, and USCIS separately published a 60-day information-collection notice proposing broader collection of social media identifiers through immigration benefit forms. These were distinct agency actions, and the Federal Register item was a proposed information collection, not a final rule. Together, they reflect an institutional view of information gathering as a continuing process rather than a single event tied to one application. See DHS’s announcement regarding social media screening and the related Federal Register notice.

The larger story is not the collection of information. Government agencies have always collected information. The larger story concerns transparency and error correction. As data sources expand, individuals and employers face increasingly important questions. What information was considered? How was it interpreted? What happens when the information is incomplete, erroneous, misleading, or stripped of context? How does someone meaningfully challenge an adverse inference that originates somewhere within a network of agencies, databases, sponsors, contractors, and human reviewers?

Those concerns become even more significant as discretion occupies a larger space in immigration adjudications. Adjustment of status provides a useful example. USCIS’s May 21, 2026 policy memorandum on adjustment of status characterizes adjustment as an extraordinary form of relief and emphasizes the discretionary nature of the benefit. The memorandum deserves attention because it signals a framework that places greater weight on individualized judgment even where statutory eligibility has been established. Readers interested in that issue can find a more detailed discussion in my blog post, “Extraordinarily Startling: USCIS’s Policy Memo on Adjustment of Status”.

The same pattern appears elsewhere. USCIS recently restored broader use of its long-standing authority to deny certain requests without first issuing a Request for Evidence or Notice of Intent to Deny. The legal authority was not new. The policy choice was. See the USCIS policy alert on evidentiary standards, RFEs, and NOIDs and the revised Policy Manual chapter on Evidence.

Likewise, immigration filings increasingly depend upon compliance with procedural requirements that leave little room for correction after submission. Signature requirements illustrate the point. In May 2026, DHS published the interim final rule Signatures on Immigration Benefit Requests, amending 8 C.F.R. § 103.2(a)(7)(ii)(A) to provide that where USCIS accepts a benefit request and later determines that it lacks a valid signature, the agency may, in its discretion, reject or deny the filing. The rule took effect on July 10, 2026 and works in conjunction with the USCIS Policy Manual chapter on Signatures. A signature issue may appear technical. Its consequences can be substantial when a rejection or denial affects filing dates, status preservation, employment authorization, cap eligibility, or the ability to remain eligible under a legal framework that changes before refiling becomes possible.

The practical implications for employers are substantial. Many organizations still approach immigration compliance as a series of independent case filings. That model increasingly feels outdated. The more prudent approach is to view immigration information as a long-term corporate record that must remain accurate, explainable, and internally consistent across many years and many transactions.

That means understanding how information appears across prevailing wage requests, labor certifications, LCAs, USCIS petitions, visa applications, Forms I-9, E-Verify records, travel histories, and internal human resources systems. It means documenting changes in duties, compensation, reporting relationships, locations, and corporate structure when those changes occur rather than attempting to reconstruct them later. It also means bringing immigration counsel into discussions about promotions, remote-work arrangements, reorganizations, reductions in force, acquisitions, and international assignments before those developments become relevant to a government filing.

Government submissions should be treated as permanent records. Any statement made today may reappear during an extension petition, immigrant visa process, adjustment application, naturalization case, site visit, or investigation years from now.

The defining immigration story of the next several years may not involve people accused of fraud or misconduct. It may involve highly accomplished professionals whose records contain years of perfectly lawful filings, all of which were accurate when submitted, but whose cumulative history is later viewed through systems designed to compare information rather than preserve context.

A filing used to be the end of a process. Increasingly, it looks more like the beginning of one.

[Blogger’s note: This post first appeared on the Vialto Blog on September 8, 2026.]

By Angelo A. Paparelli and Kevin J. Andrews

On May 26, 2026, we submitted a formal comment to the U.S. Department of Labor (DOL) opposing its proposed rule, Improving Wage Protections for the Temporary and Permanent Employment of Certain Foreign Nationals (Docket No. ETA-2026-0001), which would significantly raise prevailing wage floors for the H-1B, H-1B1, E-3, and PERM programs. We did so in our personal capacities, drawing on our combined decades of experience in employment-based immigration law. The comment period has now closed. DOL has heard from the regulated community. We await its response.

What DOL Is Proposing — and Why It Fails

The proposed rule would shift the percentile thresholds for all four wage levels substantially upward: Wage Level I would jump from the 17th to the 34th percentile, Level II from the 34th to the 52nd, Level III from the 50th to the 70th, and Level IV from the 67th to the 88th percentile. The stated rationale is that a higher wage percentile is a reasonable proxy for a higher level of skill, education, and experience.

The problem — and it is a foundational one — is that the data source DOL uses to set those percentiles, the Occupational Employment and Wage Statistics (OEWS) survey, does not measure skill, education, or experience. The Bureau of Labor Statistics itself says so explicitly. DOL acknowledges this twice in the very same rulemaking, conceding that the underlying OEWS data do not collect information on worker education or experience, and that the existing four-tier structure does not sufficiently differentiate among workers based on experience, education, and responsibility. Raising the percentile does not cure a structural data gap — it enlarges the wage obligation anchored to a system that cannot see skill.

Eight Independent Objections

Our comment identifies eight independent defects in the NPRM, each sufficient on its own to warrant withdrawal or substantial revision:

  1. OEWS cannot support skill-based wage leveling — and DOL admits it.
  2. Shifting percentiles enlarges the error — it does not fix it. DOL’s own figures show Level I wages rising 33%, with an estimated average annual wage transfer of approximately $14,000 per worker.
  3. No alternative data source cures the defect — administrative earnings data (W-2s, tax records, and longitudinal employer-household data) are retrospective, protected by federal confidentiality statutes, and still don’t capture job-level skill structure.
  4. The economic analysis is inadequate — the Regulatory Flexibility Analysis fails to model distributional, small-entity, and offshoring effects, even as DOL itself concedes a “significant economic impact on a substantial number of small entities.” Peer-reviewed research documents that H-1B restrictions drive firms to expand employment at foreign affiliates — an offshoring effect DOL does not model.
  5. OEWS is structurally lagged — built on a three-year rolling panel, it imports delay into every determination it governs, precisely as occupational skill demands are shifting faster than ever.
  6. The rule risks recreating a cross-occupation wage cascade Congress deliberately repealed in 1991 — the Miscellaneous and Technical Immigration and Naturalization Amendments specifically struck the broader wage obligation, narrowing it to the H-1B worker. Under Loper Bright Enterprises v. Raimondo (2024), DOL’s interpretation receives no judicial deference, and this is not a persuasive reading of the statute.
  7. Independent APA defects — including unexplained line-drawing in the chosen percentiles, failure to consider reliance interests, failure to treat alternative wage sources equally, inadequate engagement with existing enforcement architecture, and major-questions concerns under West Virginia v. EPA.
  8. The OEWS data gap calls for restoring and modernizing the Dictionary of Occupational Titles. — we do not merely identify what is broken. We point toward a remedy. The Department once maintained an instrument that captured exactly what OEWS omits: the Dictionary of Occupational Titles (DOT), last revised in 1991, which classified more than 12,700 occupations and recorded each one’s education, training, and skill requirements at the level of the job itself. DOL did not abandon it because the concept was unsound. We urge the Department, through a public-private partnership using modern data tools, to build a granular, occupation-level framework capable of actually supporting skill-based wage leveling — before imposing obligations the current data cannot justify.

The Stakes Are Real

As Angelo Paparelli and Stephen Yale-Loehr argued in a May 20, 2026 op-ed in The Hill, “A proposal to change foreign workers’ wages could threaten American jobs,” the rule’s design would pressure employers to raise wages for similarly situated U.S. workers or risk the appearance of favoritism toward visa holders — recreating indirectly the very cross-occupation wage obligation Congress eliminated over thirty years ago. And because the rule keys selection pressure to base salary alone, it systematically disadvantages startups, nonprofits, and academic research employers that compete for talent through equity or mission rather than cash, while entrenching large, well-capitalized incumbents.

A Useful Tool: h1bwagerule.org

We are not alone in raising these concerns. The Institute for Progress has assembled h1bwagerule.org, a comprehensive catalogue of all comments filed in this rulemaking, organized and sorted by the topics addressed. Given how important the prevailing wage issue is to the integrity of the U.S. high-skilled immigration system — and how consequential substantive public comments can be in laying out the considered views of the regulated community — we are hopeful that h1bwagerule.org will prove a genuinely useful resource for employers, federal litigators, immigration practitioners, policymakers, scholars, and anyone following this rulemaking closely.

What We Are Asking DOL to Do

We have asked DOL to take one of three actions:

  1. Withdraw the proposed rule outright.
  2. Substantially delay implementation pending development of an adequate, granular data foundation capable of actually supporting wage leveling.
  3. At a minimum, respond individually in any final rule to each of the numbered objections in the administrative record, and produce a complete economic analysis that models distributional effects by industry and firm size, addresses the offshoring response, and presents feasible alternatives as the Regulatory Flexibility Act requires.

Now We Wait

The comment period has closed. The arguments are in the record. The Department must now decide whether to finalize a rule built on a data foundation it has conceded is inadequate, or to step back and do this right. The prevailing wage framework is not a technicality — it is the cornerstone of the statutory promise that the H-1B program will not harm the wages and working conditions of U.S. workers. Getting it right matters. We remain engaged, and we will continue to report here on how this consequential rulemaking unfolds.

Kevin J. Andrews and Angelo A. Paparelli are immigration attorneys with more than a decade each of experience representing employers and individuals in H-1B, H-1B1, E-3, and PERM matters. Their full comment is available in the public record at regulations.gov, Docket No. ETA-2026-0001.

On May 21, 2026 U.S. Citizenship and Immigration Services issued a startling memorandum (“Adjustment of Status is a Matter of Discretion and Administrative Grace, and an Extraordinary Relief that Permits Applicants to Dispense with the Ordinary Consular Visa Process”).

As the memo’s title boldly proclaims, USCIS doubles down on its contention that adjustment of status — the process whereby the great majority of noncitizens have obtained lawful permanent resident (green card) status for decades — is “extraordinary,” a matter of “administrative grace,” and “not designed to supersede the regular consular visa-issuing process.”

That rhetoric may be accurate as a description of how the agency wants officers to think, but it is much harder to square with the case law that USCIS cites and the statute Congress has actually given us.

Over the last several decades, Congress has repeatedly amended the Immigration and Nationality Act (INA) in ways that weave adjustment of status into the core architecture of the immigration system, especially in the employment-based context.

INA Section 245(i) fundamentally undercuts the notion that adjustment of status is “extraordinary” by design. Congress deliberately created a pathway allowing individuals who entered without inspection or violated status — precisely the categories most disfavored in discretionary frameworks — to adjust status inside the United States upon payment of a penalty fee. That is not the architecture of a narrow, exceptional remedy; it is a mass-eligibility mechanism intended to normalize in-country processing for a broad population. By overriding core admissibility barriers and preserving eligibility through grandfathering, § 245(i) reflects a legislative judgment that adjustment should operate as a pragmatic, widely available solution — not a rare or unusual indulgence.

INA Section 245(k) explicitly anticipates up to 180 days of unlawful status, unauthorized employment, or other violations after admission and says, in effect, “you can still adjust.” That is not how you treat a rare indulgence; that is how you normalize real‑world bumps in an otherwise meritorious case.

AC‑21 portability likewise assumes that I‑485s will remain pending long enough that job changes are routine and then protects those applicants when they move to same or similar employment after 180 days. Congress does not build a detailed portability regime around a marginal, disfavored benefit. It does that when the benefit is central to how the system actually functions for workers and their families.

The Child Status Protection Act goes even further by tying core “age‑freezing” protections to the filing and acceptance of an adjustment application. If adjustment were simply a peripheral bypass to “real” immigration through consulates, it would be odd for Congress to anchor such a critical safeguard to the domestic AOS filing date.

The EB-5 immigrant investor program—especially as modernized by the EB-5 Reform and Integrity Act (RIA) — similarly contradicts the “extraordinary remedy” narrative by embedding adjustment of status into the program’s core functionality. Post-RIA features like visa set-asides and concurrent filing assume that investors already in the United States will routinely pursue adjustment, leveraging work and travel authorization while their petitions are adjudicated. This is not incidental; it is central to how the program attracts and retains capital. Treating AOS as exceptional in this context misaligns with Congress’s economic design, which depends on predictability and accessibility of in-country processing as a standard, not extraordinary, pathway for qualified investors.

And INA Section 245(c)’s “no fault” and “technical reasons” carve‑outs confirm that not every deviation from perfect status maintenance is meant to be treated as a heavy adverse factor that must be offset by “unusual or even outstanding equities.”

None of this denies that adjustment of status is discretionary. But taken together, these provisions make it increasingly difficult to sustain the claim — repeated in today’s memo –that adjustment is, in 2026, best understood as extraordinary relief that must be kept in a subordinate place behind consular processing.

If USCIS wants to lean on that narrative, it needs to grapple openly with how 245(i), 245(k), AC‑21, CSPA, the RIA, and 245(c) have transformed adjustment from a narrow act of grace into an integral, congressionally‑structured pathway.

The Department of Homeland Security’s new wage-weighted H-1B cap selection rule and the presidential proclamation imposing a $100,000 H-1B fee require a structural shift in how U.S. employers must approach global talent acquisition.

While the three civil suits challenging the $100,000 rule play out in the federal courts, and anticipated litigation seeking to overturn the rule would be credible and legally strong, timing realities make it uncertain that courts will enjoin the proclamation or the rule before the first H-1B lottery selection cycle in April 2026.

Mobility leaders should therefore plan for compliance while monitoring litigation closely. This article focuses on the wage-weighted lottery rule and explains why it is vulnerable, why early injunctions are unlikely, and how employers can adapt recruiting and workforce strategies under a wage-prioritized regime.

1.      DHS Responses to Opposition: Why They Matter

The Department of Homeland Security (DHS) received extensive and substantive opposition during the 30-day notice-and-comment period, particularly from universities, healthcare systems, research institutions, startups, and nonprofit employers. The most consequential objections focused on structural and evidentiary concerns rather than ideology.

Commenters challenged DHS on several fronts, including the use of the Labor Department’s Occupational Employment and Wage Statistics (OEWS) wage levels as a proxy for skill, the disproportionate impact on early-career professionals, regional and sectoral distortions favoring capital-rich employers in high-wage metropolitan areas, and the creation of new incentives to game Standard Occupational Classification (SOC) codes, locations, and wage determinations.

DHS finalized the rule without modifying the regulatory text in any way, asserting that wage weighting better aligns H-1B selection with congressional intent to protect U.S. workers. From a litigation standpoint, the issue is not so much DHS’s disagreement with commenters, but whether DHS meaningfully grappled with the strongest objections—particularly those questioning the empirical and statutory basis for using wage levels at the selection stage. The legal vulnerability lies not necessarily in policy disagreement, but in whether DHS substantiated its core assumptions.

2.      Strength of Litigation Challenging the Rule

Properly framed, the prospects for success in likely litigation challenging the wage-weighted selection rule are strong, especially in the post-Loper Bright judicial environment in which courts rule on legal arguments without reverential deference to agency interpretations.

Challengers can argue under the Administrative Procedure Act that the rule is arbitrary, capricious and unlawful because DHS relied on its own asserted but unsubstantiated causal narratives—that the random lottery allegedly enables abuse, and that wage weighting will reverse perceived labor-market harm—without demonstrating a clear link between H-1B lottery selection mechanics, alleged wage suppression, and the predicted corrective effect.

Statutory authority arguments are also strengthened. Congress embedded wage protections primarily through the Labor Condition Application framework administered by the Department of Labor. Using wage levels as a selection preference may therefore be viewed by the courts as labor-market engineering rather than a reasonable lottery selection process.

3. Ripeness: Why Early Injunctions Are Unlikely

Despite the merits of foreseeable litigation, motions for preliminary injunction filed before the selection process occurs are unlikely to succeed. While the rule constitutes final agency action and is therefore reviewable, the courts may conclude that the matter is not ripe for judicial decision because injunctive relief requires convincing proof of concrete and imminent harm.

Before registration opens and selections are run, employer harm arguably remains speculative. Courts rarely consider compliance planning costs as irreparable injury. Federal judges are more likely to be receptive, however, to motions for preliminary injunctions after registration closes or after selections are announced to identifiable plaintiffs.

4. Practical Planning and Alternative Strategies

Given the likelihood that both the weighted selection rule and a $100,000 wage requirement will shape hiring outcomes, employers should adopt a portfolio-based approach rather than a single, uniform response.

Some employers will consider selectively increasing wages for mission-critical roles. This requires careful attention to internal equity and pay compression—where raising wages for new noncitizen hires narrows or eliminates pay differentials with more senior or long-tenured employees.

At the same time, employers should consider expanding non-H-1B pathways, including concurrent cap-exempt H-1Bs, O-1 visas, treaty-based categories (i.e., Es, H-1B1s, TNs), J-1 exchange visitors, earlier L-1 planning, and global remote deployment and relocation models to more welcoming nations.

5. Final Thoughts and Call to Action

The weighted selection rule, particularly when layered with a $100,000 wage proclamation, is likely vulnerable in litigation. However, timing realities mean that the wage-weighted rule is unlikely to be halted by the courts before the first H-1B lottery selection cycle in April 2026.

Mobility leaders should therefore pursue a dual-track strategy:

  • Plan for compliance as though the rule will apply when registrations under the lottery are required in March 2026, and
  • Engage with counsel to monitor litigation, assess participation options, and preserve strategic flexibility if relief becomes available later.

In-house mobility leaders should therefore be working now with experienced immigration, employment, and administrative-law counsel to stress-test wage strategies, diversify talent pipelines, and ensure that registration decisions are deliberate rather than reactive.

The rule changes the process—but it does not eliminate choice. Thoughtful planning, informed risk-taking, and early legal engagement will distinguish employers who adapt from those who are forced to react.

[Blogger’s note: The H-1B Notice of Proposed Rulemaking (NPRM)(” Weighted Selection Process for Registrants and Petitioners Seeking To File Cap-Subject H-1B Petitions”) closed for comments October 27, 2025. More than 9,000 have been submitted with additional comments possible on the lottery registration form until November 24, 2025. On varying and at times overlapping or contrary grounds, several organization submitted comments opposing the NPRM. You can read them here: The American Immigration Lawyers Association/American Immigration Council; the Compete America Coalition; the Society for Human Resources Management; the National Foundation for American Policy; the Citizens Rulemaking Alliance; and ITServe Alliance all opposed the NPRM. Writing as a private citizen, taxpayer and immigration lawyer, I did as well. My comment follows.]

Comment in Opposition to DHS/USCIS Proposed Rule
DHS Docket No. USCIS‑2025‑0040
Weighted Selection Process for Registrants and Petitioners Seeking to File Cap‑Subject H‑1B Petitions

To the U.S. Department of Homeland Security and U.S. Citizenship and Immigration Services:

By way of introduction, I am an American citizen and taxpayer who is licensed to practice law in the states of California, Michigan, and New York, and in the District of Columbia.  I have practiced U.S. immigration and nationality law exclusively for more than four decades and have published several articles on the H-1B visa category since its incorporation into the Immigration and Nationality Act (INA) with the enactment of the Immigration Act of 1990.

I write this comment solely on my own behalf and submit it in respectful opposition to the proposed rule published on September 24, 2025, that would replace the longstanding random H‑1B lottery with a wage‑weighted selection system.

While the stated goal of promoting highly skilled and highly paid workers is commendable, this proposal represents an overly narrow and economically disruptive departure from both the INA’s statutory design and the real needs of the U.S. economy.

The use of Department of Labor wage levels as a proxy for “merit” misunderstands the structure of the modern labor market. Wage levels reflect experience, tenure or managerial responsibilities more than skill or innovation potential. As such, the rule would systematically disadvantage start‑ups, small businesses, nonprofit research institutions, schools, health care providers and emerging sectors that rely on hiring recent graduates and early‑career professionals—workers who are often at wage levels I or II but contribute significantly to the needs of American consumers and to U.S. innovation, particularly in engineering, biotechnology, and software development.

The proposed system’s statistical weighting—granting up to four entries for Level IV positions while significantly reducing the current selection odds for Level I—would create an uneven and exclusionary process that favors H-1B petitioning employers capable of sustaining higher pay scales. These outcomes undermine Congress’s policy of balancing competitiveness with fairness through an equal‑chance lottery designed to allocate limited visa numbers objectively.

The adverse economic effects of the proposed rule are further magnified by President Trump’s September 19, 2025, Proclamation, Restriction on Entry of Certain Nonimmigrant Workers, which imposes a $100,000 supplemental fee on new H‑1B petitions filed on or after September 21, 2025. When combined with the NPRM’s wage‑weighted selection framework, this additional fee effectively creates a dual barrier—drastically increasing the financial burden on employers while simultaneously reducing the probability of selection for those offering wages below Level III. Together, the two measures would render participation in the H‑1B program economically unfeasible for many small and mid‑sized U.S. firms, universities, and research institutions, thereby compounding the damage to labor market flexibility and American competitiveness.

Furthermore, the proposed rule risks introducing inequitable geographic and sectoral consequences because prevailing wage data are inconsistent across metropolitan areas and occupational codes. Firms in lower‑cost regions would face artificially lower selection odds even when offering competitive wages relative to local markets.

In addition, the NPRM’s reliance on Liu v. Mayorkas, 588 F. Supp. 3d 43 (D.D.C. 2022), is legally misplaced and cannot sustain the proposed rule’s radical restructuring of the H‑1B cap allocation process. Liu addressed a narrow challenge to USCIS’s implementation of its online registration system and upheld the agency’s discretion to try and prevent multiple filings for the same beneficiary. It did not authorize DHS or USCIS to abandon Congress’s plain directive in section 214(g)(3) of the INA, which mandates that visas “shall be issued … in the order in which petitions are filed.”

By using Liu to justify a wage‑based weighting of the lottery, the NPRM stretches that precedent beyond recognition. The district court in Liu merely endorsed USCIS’s administrative discretion to manage simultaneous filings during a single registration period; it did not condone a substantive prioritization scheme creating unequal selection probabilities among statutorily identical petitions. Congress deliberately preserved equality of treatment under the H‑1B cap, and neither the INA nor Liu provides a lawful basis for DHS to replace the congressionally mandated order‑of‑filing principle with an outcome that rewards employers offering higher wages.

Nothing in Liu indicates judicial acceptance of a policy that converts an equal‑chance lottery into a stratified, wage‑driven allocation system. To the contrary, the decision cautioned that agency discretion must remain consistent with statutory language and legislative purpose. The NPRM’s approach would invert that principle, effectively rewriting section 214(g)(3) under the guise of regulatory modernization.

Accordingly, this proposal exceeds the boundaries articulated in Liu and the INA, rendering the agency’s reliance on that case unsound. USCIS should withdraw the rule and preserve adherence to the statutory lottery process Congress enacted to ensure fairness, transparency, and equal opportunity in the allocation of H‑1B visas.

The NPRM is also unjustified in its citation to 6 U.S.C. § 111(b)(1)(E) of the Homeland Security Act as one of its legal bases, asserting that the Secretary of Homeland Security is charged with ensuring that “the overall economic security of the United States is not diminished by efforts, activities, and programs aimed at securing the homeland.” However, this provision was intended as a constraint on DHS’s regulatory power—not an expansion of it. It obligates the Department to avoid initiatives that would weaken economic stability or burden lawful sectors of American commerce.

The proposed H‑1B weighted selection rule directly conflicts with this statutory limitation. By skewing the H‑1B allocation process toward employers able to pay higher wages and the Proclamation’s $100,000 fee and away from small or mid‑sized employers that cannot match higher prevailing wage levels, the rule would exacerbate market concentration, suppress innovation from start‑ups, and disadvantage key regional industries and sectors. These foreseeable outcomes would diminish, rather than safeguard, the nation’s “overall economic security” as articulated in 6 U.S.C. § 111(b)(1)(E).

In invoking this statute to justify the rule, DHS reverses its plain purpose. The Department’s regulatory actions must enhance national economic resilience, not create new structural barriers that disrupt labor mobility and entrepreneurship. A rule that constrains U.S. employers’ ability to access specialized talent undermines the statutory mission Congress assigned to DHS. The agency should therefore withdraw this proposal as inconsistent with its governing mandate and the intent of 6 U.S.C. § 111(b)(1)(E).

Furthermore, the NPRM repeatedly reclassifies certain registrations or petitions in an arbitrary fashion to the lowest available wage level—Wage Level I—even where higher wage levels may reasonably apply. This internal downgrading occurs in three distinct parts of the proposed framework, each of which undermines the stated policy objective of rewarding higher wages and skills.

  1. Multiple Worksite Assignments – As described in the section on the required information for registration, when a single H‑1B beneficiary will work at several locations, the registrant must indicate the lowest equivalent wage level among all those worksites as the level to be used for selection. The proposal explicitly directs the employer to choose the lowest level that the proffered wage meets or exceeds, and USCIS would rely on that level when weighting the registration. This means that if one worksite qualifies for Level III wages and another only for Level I, the entire registration is treated as Level I for selection purposes, eliminating any benefit from the higher‑paid portion of the employment.
  2. Multiple Registrants for a Single Beneficiary – Under the section establishing the weighting process, USCIS would assign a wage level to a beneficiary based on “the lowest OEWS wage level among all registrations submitted on that beneficiary’s behalf.” Thus, even if one registrant offers a Level IV wage and another offers Level I, all registrations for that beneficiary are automatically weighted as Level I. The NPRM proposes this as an anti‑gaming measure, but its effect is to erase legitimate higher‑wage offers and give controlling significance to the lowest bid.
  3. Amended Petitions or Wage Adjustments – In the process‑integrity provisions, the NPRM states that USCIS may revoke a petition or deny a new filing if it appears that a petitioner sought to alter the wage level after selection to improve—or to maintain—selection odds. In this context, the rule again applies the lowest wage level associated with a given petition, worksite, or related entity. By doing so, it treats any subsequent change as evidence of inconsistency, even when ordinary business conditions explain the adjustment.

These built‑in downgrades produce a structural bias toward Level I treatment, contradicting DHS’s own assertion that the rule promotes higher wages. In practical effect, the rule converts mixed or variable wage scenarios—common among multi‑site and multi‑employer arrangements—into uniform Level I classifications. The repeated “lowest‑level” default ensures that USCIS’s weighting scheme would frequently disregard genuine Level II, III, or IV wage offers, reinforcing inequities and diluting the very incentives the Department claims to create.

For consistency with DHS’s stated policy rationale, the rule should be revised to prevent automatic downgrading when legitimate higher wage levels are part of the employment offer. Otherwise, the proposed system will systematically misclassify and undervalue complex positions while reducing selection chances for employers adhering to transparent, multi‑location business practices.

In addition, USCIS’s initial Regulatory Impact and Flexibility analysis greatly underestimated the deleterious impact of the proposed rule on small businesses and failed to propose workable mitigation strategies. The agency acknowledges that nearly one‑third of small H‑1B petitioners would experience significant harm, yet the rule does not propose exemptions, transitional relief, or offsetting mechanisms that 5 U.S.C. § 603 requires for small entities.

In light of these significant legal, economic, and equity concerns, I respectfully urge DHS and USCIS to withdraw this proposed rule in its current form. The existing beneficiary‑centric system already limits abuse while preserving fairness. Any future reform should arise from congressional deliberation or a comprehensive rulemaking that considers broader factors such as education, research value, and national interest—not merely wage level.

Respectfully submitted,

Angelo A. Paparelli

From time to time, I’m lucky to be invited to wax philosophical and legal on a wide range of U.S. immigration topics dear to my heart.

I had that good fortune twice recently.

One involved an extended conversation of about 40 minutes with Theresa Cardinal Brown, Senior Advisor on Immigration/Border Security at the Bipartisan Policy Center, and the second, about as long, with Barnaby Merrill, Editor of The Legal 500.

In “Fixing the H-1B Lottery,” I discussed with Theresa the history and present state of the H-1B lottery for professionals in specialty occupations, and explained popular and social media misunderstandings about existing H-1B provisions, as well as the safeguards against abuse already in the Immigration and Nationality Act and in Department of Labor and Department of Homeland Security regulations. I also offered suggestions on how Congress and the White House could improve the program.

With Barnaby, the topic was “US immigration changes during Trump 2.0.” I chatted about immigration history going back decades and on how the Trump Administration, with an array of executive orders, and agency memoranda, has taken steps to change immigration comprehensively and dramatically.

If you can listen and drive at the same time (without endangering yourself or others), please lend an ear or two to these — dare I humbly say, informative and engaging — podcasts.

[Blogger’s note: Reports in traditional and social media have highlighted the new focus of U.S. Customs and Border Protection inspections officers who question applicants for admission to the United States at international ports of entry and preclearance sites abroad. My colleague, Raha Torabi, and I have co-authored this post that addresses the specific concerns of business travelers.]

With US immigration policies under heightened scrutiny, business travelers and the companies abroad that dispatch them must be particularly mindful of entry requirements and restrictions when visiting the United States.

Even with a valid B-1 (business visitor) / B-2 (visitor for pleasure) visa or ESTA visa-waiver authorization allowing WB (waiver business) or WT (waiver tourist) admission,[1] each entry is assessed individually, and a traveler’s failure to adhere to permitted activities and legal constraints could result in delays, additional questioning, or even denial of entry and a future bar to reentry.

Permissible activities for business travelers[2]

Under a B-1 visa or ESTA WB authorization, business travelers may engage in the following US-based activities:

  • Attending meetings or negotiations—e.g., Meeting with clients or vendors to discuss or negotiate contracts or determine contract specifications.
  • Participating in trade shows or conferences—e.g., Attending a technology expo to network or take orders for future fulfillment outside the US.
  • Consulting with US-based associates—e.g., Offering business advice or strategy recommendations to a US affiliate without engaging in operational tasks or direct project execution, or being supervised by US based managers.
  • Conducting independent research—e.g., Analyzing industry trends, competitor activities, or economic conditions in the US on behalf of a foreign company without engaging in direct business operations or work.
  • Receiving short-term training—e.g., Attending a corporate training session.
  • Engaging in certain allowable short-term professional activities—e.g., Tasks requiring a relevant bachelor’s or higher degree (or equivalent experience), while remaining employed, paid, and supervised by a foreign employer located abroad.

Prohibited activities for business travelers[3]

Business travelers are NOT permitted to:

  • Engage in employment or receive US wages or supervision—e.g., Working for a US or foreign company or freelancing or self-employment on behalf of US or foreign clients while in the US. This includes work performed on behalf of a US employer that could otherwise be done by a US employee, such as providing client services or managing company operation.
  • Provide direct services to a US company—e.g., Installing, servicing or repairing equipment at a customer site in the US
    • Exception: Certain contracts include: 
      • After-sale activities such as installing, servicing, or repairing commercial or industrial equipment or machinery purchased from a company outside the United States; or
      • Training US workers to perform such services.
  • Manage or operate a US business—e.g., Running daily operations or hiring employees for a US entity.
  • Perform hands-on work—e.g., Assembling goods.
  • Overstay the permitted period of entry—e.g., Remaining beyond the allowed timeframe without proper authorization.

Preparing for entry: Tips for a smooth arrival

  • Know your purpose: Be clear on the business-related reason for your trip and ensure it aligns with lawful business-traveler requirements. Note that saying you are coming to “work” in the US, rather than engaging in permissible business activities or services, may convey to a US Customs and Border Protection (CBP) officer that you are seeking to enter unlawfully to perform skilled or unskilled labor for hire—activities that are not allowed under the B-1 or WB business-visitor categories.
  • Be prepared to present supporting documents: Consider carrying an invitation letter from a relevant US business contact or foreign employer, and/or conference registration details, as well as evidence of ties to your home country (e.g., proof of foreign employment, property ownership, close family members outside the US, evidence of financial resources to cover expenses during your US visit, and a round-trip return ticket).
  • Ensure your travel documents are in order: Review your passport, ESTA and/or visa stamp to confirm its validity for the duration of your planned trip to the US. Some passports are required to be valid for at least six months after the intended US departure date. Review your specific passport requirements before you travel and apply for a timely renewal where necessary.
  • Be consistent: Your statements to CBP officers must be truthful, and should align with your documentation and visitor category; keep your responses concise and to the point.
  • Never misrepresent the facts: A “white lie” or minor inconsistency can raise red flags, result in additional scrutiny, and may even result in refusal of admission to the United States or a permanent bar to reentry.
  • Stay within the scope: Do not volunteer unnecessary information; if your trip includes non-business activities that are lawful yet incidental, i.e., less than 50% of your time in the US on that trip, ensure they remain within legal limits for your visa type and do not involve unauthorized work or the bartering of services, e.g., house-sitting or childcare.
  • Expect vetting at each entry: A valid ESTA authorization or B-1/B-2 visa does not guarantee admission; officers assess eligibility upon each arrival.
  • Impact of travel history on ESTA eligibility and US entry for business travellers: Prior travel to countries the US considers as hostile to its interests may disqualify a traveler’s eligibility for ESTA authorization or trigger additional questioning by CBP. Such trips could impact admissibility or future renewals under the B-1 visa or ESTA WB business-visitor categories.
  • Be prepared for potential mobile device searches: CBP has the authority to inspect and confiscate electronic devices, including laptops and mobile phones, at the border. Consider your organization’s policies and best practices for digital privacy and security while traveling.[4]
  • Mind your digital footprint: Be aware that US immigration officers may review your social media activity. Ensure that your online presence is consistent with your stated, law-abiding purpose for visiting the country.
  • Be aware of the grounds of inadmissibility: US immigration laws bar the admission of noncitizens whose past activities or intended purpose in visiting the country are treated under American law as illegal or prohibited.[5] If you have questions or concerns about your past or prospective activities, consult a US-licensed immigration lawyer whom you assess to be competent in the specific subject matter.

With heightened enforcement under the current administration, business travelers should take extra precautions to ensure compliance with US immigration laws and avoid unwelcome complications at the border. Planning ahead and understanding the rules may help facilitate a smooth entry into the US for your business visits.

[1]See U.S. Customs and Border Protection, web page,”Frequently Asked Questions about the Visa Waiver Program (VWP) and the Electronic System for Travel Authorization (ESTA),” accessible here:    https://www.cbp.gov/travel/international-visitors/esta. (All links in this article last visited on March 27, 2025.)

[2] See 22 CFR § 41.31, U.S. Department of State, Foreign Affairs Manual,  9 FAM 402.2-5 (accessible here: https://fam.state.gov/fam/09fam/09fam040202.html) and U.S. Citizenship and Immigration Services web page, “ B-1Temporary Business Visitor” (accessible here: https://www.uscis.gov/working-in-the-united-states/temporary-visitors-for-business/b-1-temporary-business-visitor) (All links in this article last visited on March 27, 2025).

[3]  Id.

[4] See U.S. Customs and Border Protection, web page, “Border Search of Electronic Devices at Ports of Entry,” accessible here::  https://www.cbp.gov/travel/cbp-search-authority/border-search-electronic-devices.

[5] See U.S. Department of State, Foreign Affairs Manual,  9 FAM 302 (Grounds of Ineligibility), accessible here: https://fam.state.gov/fam/09FAM/09FAM030201.html, , and U.S. Citizenship and Immigration Services Policy Manual, Volume 8, “Admissibility,” accessible here: https://www.uscis.gov/policy-manual/volume-8.

Although the pace of President Trump’s Executive Orders (EOs) targeting border enforcement has slowed since  Inauguration Day, the repercussions of these and more recent EOs on legal immigration have grown. 

This article will outline and assess recent efforts by federal immigration officials in the Department of State (DOS),  the Department of Justice (DOJ), and component agencies within the Department of Homeland Security (DHS)—US  Citizenship and Immigration Services (USCIS), U.S. Immigration and Customs Enforcement (ICE), and U.S. Customs  and Border Protection (CBP)—to implement his many EOs. 

While the impact of the EOs on legal immigration suggest more burdens ahead for immigration stakeholders, his  public statements about a soon-to-be-detailed “$5 million Gold Card,” and on measures that might allow noncitizen  graduates of American universities to work in the US after graduation, offer an apparent glimmer of hope, as this  article will also explain.

Executive Order 14159: Protecting the American People Against Invasion

This EO, among other things, directed federal immigration officials in DHS, DOJ and DOS to “ensure that all  previously unregistered [noncitizens] in the United States comply with the requirements” of the Immigration and  Nationality Act (INA) § 262 (“Registration of Aliens”) [8 U.S.C. § 1302], and that a noncitizen’s failure to apply for  registration and be fingerprinted is a federal misdemeanor punishable upon conviction by six months of  imprisonment, a fine of up to $1,000, or both under INA § 266(a) [8 U.S.C. § 1306(a)]. In addition, the failure to carry  registration documentation is likewise punishable as a misdemeanor under INA § 264(e) [8 U.S.C. § 1304(e)], and  subject, upon conviction, to a $100 fine, a 30-day term of imprisonment, or both. Under EO 14159, noncompliance  with the registration requirements should be “treated as a civil and criminal enforcement priority.” These  misdemeanour offenses are characterized as Class C felonies under 18 U.S.C. § 3559(a)(8) because they carry a  term of imprisonment of 30 days, and as such, under 18 U.S.C. § 3571(b)(6), the maximum fine is instead $5,000.

The registration requirement is not new, it originated in 1940; but its enforcement is now a Trump administration  priority. 

In addition to the civil and criminal penalties noted above, an existing USCIS regulation, 8 C.F.R. § 214.1(f), provides  that a “non-immigrant’s wilful failure to provide full and truthful information requested by DHS (regardless of whether  or not the information requested was material) constitutes a failure to maintain non-immigrant status” under INA §  237(a)(1)(C)(i), and thus renders them deportable.

Implementation of EO 14159:

On February 25, 2025, USCIS posted an announcement outlining three categories of noncitizens: (1) those “[who  have] already registered”; (2) those “[who] must apply for registration”; and (3) those “[who are] not register[ed],” as  follows: 

[1] Who has already registered?

Aliens who have already registered include:

● Lawful permanent residents;

● Aliens paroled into the United States under INA 212(d)(5), even if the period of parole has expired; ● Aliens admitted to the United States as non-immigrants who were issued Form I-94 or I-94W (paper or  electronic), even if the period of admission has expired;

● All aliens present in the United States who were issued immigrant or non-immigrant visas prior to arrival; ● Aliens whom DHS has placed into removal proceedings;

● Aliens issued an employment authorization document;

● Aliens who have applied for lawful permanent residence using Forms I-485, I-687, I-691, I-698, I-700,  even if the applications were denied; and,

● Aliens issued Border Crossing Cards.

[2] Who must apply for registration?

● All aliens 14 years of age or older who were not registered and fingerprinted (if required) when applying  for a visa to enter the United States and who remain in the United States for 30 days or longer. They  must apply before the expiration of those 30 days.

● The parents and legal guardians of aliens less than 14 years of age who have not been registered and  remain in the United States for 30 days or longer, prior to the expiration of those 30 days. ● Any alien, whether previously registered or not, who turns 14 years old in the United States, within 30  days after their 14th birthday.

[3] Who is not registered?

Aliens who have not registered include:

● Aliens who are present in the United States without inspection and admission or inspection and parole;

● Canadian visitors who entered the United States at land ports of entry and were not issued evidence of  registration; and,

● Aliens who submitted one or more benefit requests to USCIS not listed in 8 CFR 264.1(a), including  applications for Deferred Action for Childhood Arrivals or Temporary Protected Status, who were not  issued evidence of registration.

The USCIS announcement is ambiguous, however, because it does not explain why those in category [3] above, who  have not registered, are not included in category [2], i.e., those who “must apply for registration.” The posting states  that “DHS will soon announce a form and process requiring registrants (and parents or guardians of minors under 14) to open a USCIS online account by February 25, 2025 in preparation for the registration process. Form “G-325R  Biographic Information (Registration)” is to be used for online registration. 

On March 12, 2025, USCIS published an interim final regulation (IFR) effective in 30 days, with a 30-day comment  period, addressing the registration requirements. 

The IFR adds some clarity to the registration requirement but is also ambiguous. 

The IFR makes clear that Canadian non-immigrants for business or pleasure who have not been issued a Form I-94  (arrival/departure record) and are considered by USCIS as not having registered, must register online by completing  Form G-325R. Submission of their Form G-325R must occur  within 30 days of March 12, 2025 just like other noncitizens who must newly register.

The IFR also points to an existing USCIS regulation, 8 C.F.R. § 264.1(e)(3), which stipulates that any noncitizen in any  non-immigrant category who has not previously been fingerprinted and who has failed to maintain non-immigrant  status must apply “at once” for fingerprinting.

The IFR also adds to the ambiguity arising from the February 25, 2025 USCIS announcement. Whereas the  announcement states that noncitizens “who have applied for lawful permanent residence using Form… I-485” are  considered as “already registered,” the IFR states: “In some cases, the acceptable evidence of registration at… is the  result of an approved application only, which may leave denied or pending applicants without any acceptable  evidence that they have complied with the requirement to register. (Emphasis added.)

Executive Order 14161: Protecting the United States From Foreign Terrorists and Other  National Security and Public Safety Threats

This EO directed federal immigration officials in DOS, DOJ and DHS to:

(a) “promptly” improve vetting and screening processes for all foreign nationals, including noncitizens who  entered the country since January 19, 2025; 

(b) review all visa programs to identify and prevent misuse by foreign actors harmful to US security,  economy, politics, or culture; 

(c) recommend measures to counter foreign nationals undermining US constitutional rights, including  freedom of speech and religion; and 

(d) evaluate and recommend enhancements to immigrant assimilation programs to promote adherence to  US constitutional principles and identity.

Implementation of EO 14161:

On March 3, 2025, USCIS—acting under the authority of EO—published a Paperwork Reduction Act (PRA) notice,  with a 60-day comment period, announcing its intention “to collect standard data on immigration forms and/or  information collection systems,” in order to comply with this EO and thereby “establish screening and vetting  standards and procedures to enable USCIS to assess an alien’s eligibility to receive an immigration-related benefit  from USCIS.” The March 3 PRA notice did not address the registration requirement or clarify the noted ambiguity  concerning categories of unregistered persons required to register.

Separately, on March 5, 2025, USCIS also published another PRA notice in reliance on EO 14161 and the agency’s  asserted need to collect “all information necessary for a rigorous vetting and screening of all grounds of  inadmissibility or bases for the denial of immigration-related benefits.” This notice, likewise with a 60-day public  comment period, announced USCIS’s intention to collect on immigration forms and/or information collection  systems “social media identifiers (‘handles’) and associated social media platform names from applicants.” The agency’s stated purpose for this collection is “to enable and help inform identity verification, national security and  public safety screening, …vetting, and related inspections.” 

As noted above, EO 14161 requires federal officials to identify noncitizens who are perceived to pose harm to US  security, economy, politics, or culture; undermine US constitutional rights, including freedom of speech and  religion; and assimilate to US constitutional principles and identity. USCIS has apparently concluded that the  collection of noncitizens’ social media handles will help the agency discern such harms or ascertain the extent of  immigrant assimilation and loyalty to American values.

According to the Trump administration, one such value is the adoption of English as our country’s official language. This is reflected in a March 1, 2025 EO (not yet assigned a number in the Federal Register), “Designating English as the Official Language of The United States.” This EO expressly rescinded EO 13166 (“Improving Access to Services for Persons with Limited English Proficiency”), and also authorized the Attorney General to “rescind any policy guidance documents issued pursuant to Executive Order 13166 and provide updated guidance, consistent with applicable law.” This rescission would seemingly include former Attorney General Merrick B. Garland’s November 21, 2022 memorandum to all
federal agencies, “Strengthening the Federal Government’s Commitment to Language Access,” as well as several agencies’ “language access plans,” accessible at Digital.gov.

In a separate action, DOS has reportedly authorized the use of artificial intelligence to review “tens of thousands  of… social media accounts” of F-1 (academic student), M-1 (vocational student), and J-1 (exchange visitor) non immigrants in the Student-Exchange Visitor Information System (SEVIS) in order to identify and cancel the visas  of certain foreign nationals, e.g., those “who appear to support Hamas or other designated terror groups.” 

Immigration stakeholders concerned about the disclosure of noncitizen social media profiles and postings, and  the AI-assisted scrutiny of the same by federal immigration officials should therefore consider alerting their  affected populations to these rapidly evolving practices and consider the submission of a comment to the March  5, 2025 PRA notice.

Although not expressly premised upon EO 14161, other noteworthy developments affecting consular visa practice  have recently taken place:

● President Trump issued a February 12, 2025 Presidential Action (“One Voice for America’s Foreign  Relations”) that declares as U.S. policy the requirement that consular officers and other DOS employees  “faithfully implement the President’s [foreign] policy” or face discipline, and orders Secretary of State to  “revise or replace the Foreign Affairs Manual [FAM] and direct subordinate agencies to remove, amend, or  replace any handbooks, procedures, or guidance.” Volume 9 of the FAM contains detailed instructions to  consular officers compiled over decades on the legal and procedural requirements for approving or  refusing immigrant and non-immigrant visa applications. Thus, it remains to be seen how the new One  Voice mandate will result in any forthcoming FAM revisions. Historically, FAM amendments have not  entailed formal procedures for public notice and the opportunity to comment before they become  effective—unlike published proposed and final agency regulations.

● The State Department on February 18, 2025 announced new and more restrictive limitations on the  circumstances when non-immigrant visa applicants are eligible for a waiver of an in-person consular  interview. Going forward, only applicants “who previously held a visa in the same category that expired  less than 12 months prior to the new application” are eligible for interview waiver. In practical terms, this  includes most foreign nationals in the United States who hold non-immigrant work visa status, since most  of them hold expiring visas issued more than a year ago.

Executive Order 14168: Defending Women from Gender Ideology Extremism and Restoring  Biological Truth to the Federal Government

This EO, among other things, directs the Secretaries of State and Homeland Security to “implement changes to  require that government-issued identification documents, including passports, visas, and Global Entry cards,  accurately reflect the holder’s sex.” The EO defines “sex” as “an individual’s immutable biological classification as  either male or female.” It also states: “Agency forms that require an individual’s sex shall list male or female and shall  not request gender identity.”

Implementation of EO 14168:

On February 11, 2025, in reliance on EO 14168, DOS published a new page under “Passport Help,” entitled “Sex  Marker in Passports,” that stated:

Under the Executive Order, we will no longer issue US passports or Consular Reports of Birth Abroad  (CRBAs) with an X marker. We will only issue passports with an M or F sex marker that match the  customer’s biological sex at birth. 

If you submit a passport application requesting an X marker or requesting a sex marker that differs from  the sex marker at your birth, you may experience delays getting your passport. You may receive a letter  or email requesting more information. We will issue you a new passport that matches your biological sex  at birth, based on your supporting documents and our records about your previous passports. 

The new page also contained answers to frequently asked questions. The FAQs indicated that previously issued US  passports are proof of US citizenship and identity, and can be used for entry into the United States until the  passport’s expiration date, without restrictions unless another country imposes limitations.

Separately, on February 7, 2025, Secretary of State Marco Rubio issued a cable (25 STATE 11402) to all “visa issuing” consular posts to implement EO 14168 in the adjudication of noncitizen applications for US visas. The cable  states:

Generally, the sex listed on the foreign passport should be considered as prima facie evidence of the  applicant’s sex as defined in the E.O. However, there may be instances when a consular officer becomes  aware that the sex listed on the foreign passport may not be the applicant’s sex as defined in the E.O.  In such cases, the adjudicator should confirm the applicant’s sex as defined in the E.O., indicate that  sex on the visa, and add a case note documenting any discrepancy between the passport and the  visa to prevent issues at the POE (port of entry).

The wilful failure to list biological sex at birth on a US visa application could lead to not merely refusal of the visa, but also a ground of permanent visa ineligibility and inadmissibility. According to a recent newspaper report, the State Department has issued a February 24, 2025 cable in reliance upon a different EO—EO 14201 (Keeping Men Out of  Women’s Sports)—which stated:

The 24 February state department cable obtained by the Guardian instructs visa officers to apply  Immigration and Nationality Act section 212(a)(6)(C)(i)—the “permanent fraud bar”—against trans  applicants. Unlike regular visa denials, this section triggers lifetime exclusion from the United States  with limited waiver possibilities.

“In cases where applicants are suspected of misrepresenting their purpose of travel or sex, you should  consider whether this misrepresentation is material such that it supports an ineligibility finding,” reads the  directive from the US secretary of state, Marco Rubio.

USCIS likewise has taken steps to implement the biological-sex-at-birth mandate of EO 14168. On March 2, 2025,  without forewarning, and to the extreme dismay of immigration stakeholders who had just prepared and transmitted  paper applications with required evidence and payment of the required filing fees, USCIS issued new editions of  several immigration forms with virtually immediate effect (as of March 3, 2025 and March 4, 2025)—all dated  January 20, 2025, President Trump’s first day in office. 

These included the following forms: N-400 (Application for Naturalization), I-485 (Application to Register Permanent  Residence or Adjust Status), I-485 Supp J (Confirmation of Valid Job Offer or Request for Job Portability), I-131  (Application for Travel Documents, Parole Documents, and Arrival/Departure Records) and I-134 (Declaration of  Financial Support). These new editions were annotated as effective immediately (as of March 3, 2025 and March 4,  2025).

The prior versions of these forms allowed applicants to specify their gender as: male, female or “other gender  identity,” and did not require disclosure of biological sex at birth. Regrettably, however, USCIS did not disclose how  the agency would handle applications submitted using the prior forms that are received after March 3rd or 4th. 

Whether USCIS accepts and adjudicates or rejects and returns such prior versions can mean the difference between  continued lawful status, on the one hand, or, ineligibility for the benefit requested, an immigration status violation,  and—under a February 28, 2025 Policy Memorandum penned by DHS Secretary Kristi Noem (“Issuance of Notices to  Appear . . . in Cases Involving Inadmissible and Deportable Aliens”)—a referral of the hapless applicant to appear  before an immigration judge in a removal hearing.

Fortunately, however, perhaps prompted by federal court litigation initiated by the American Immigration Lawyers  Association and private attorneys that sought injunctive relief, USCIS on March 8, 2025 extended the deadline for  filing the January 20, 2025 versions of the above forms to April 3 or 4, 2025.

Executive Order 14151: Ending Radical and Wasteful Government DEI Programs and  Preferencing

This EO, among other things, declared that “Americans deserve a government committed to serving every person  with equal dignity and respect, and to expending precious taxpayer resources only on making America great.” It also  directed each agency head, in consultation with the Attorney General, within 60 days, to “recommend actions… to  align agency or department programs, activities, policies, regulations, guidance, employment practices,  enforcement activities… and litigating positions with the policy of equal dignity and respect…” (Emphasis added.)

On February 19, 2025, Acting Chair Lucas stated:

The EEOC is putting employers and other covered entities on notice: if you are part of the pipeline  contributing to our immigration crisis or abusing our legal immigration system via illegal preferences  against American workers, you must stop. The law applies to you, and you are not above the law.  The EEOC is here to protect all workers from unlawful national origin discrimination, including  American workers

…

Unlawful bias against American workers, in violation of [the prohibition against national origin  discrimination in] Title VII, is a large-scale problem in multiple industries nationwide

…

Many employers have policies and practices preferring… visa holders or other legal immigrants  over American workers—in direct violation of federal employment law prohibiting national origin  discrimination. Cracking down on this type of unlawful discrimination will shift employer incentives… decreasing abuse of the United States’ legal immigration system. (Emphasis added.)

Other recent actions similarly suggest that the Trump administration intends to vigorously target employers that are  seen as favoring or are perceived to favor noncitizen workers, and thereby seen to be disfavoring US citizens. 

As reported on February 17, 2025 in Bloomberg Law, Alberto Ruisanchez, who headed the DOJ’s Immigrant and  Employee Rights (IER) section, has been replaced. IER is charged with investigating and enforcing actions by  employers which amount to citizenship status discrimination under INA § 274B [8 U.S.C. § 1324b]. This action comes  in the wake of a May 2024 letter from then-Senator JD Vance, criticizing IER for devoting insufficient attention to  investigating discriminatory instances of noncitizen preference over US citizens and permanent residents. 

This focus on enforcement of the prohibition against citizenship status discrimination which could be seen as  perpetrated against US citizens is consistent with Project 2025’s Mandate for Leadership, Ch. 17 (“Department of  Justice”), p. 568, which urged the DOJ to: 

Pursue aggressive enforcement of the immigration laws within the Immigrant and Employee Rights  Section of the Civil Rights Division to ensure that no American citizen is discriminated against in the  employment context in favor of a temporary or foreign worker. (Bolding interregional.)

The investigation and enforcement policies announced in EO 14151, as reflected in the noted actions of the EEOC  and DOJ, should be read in the context of other DOJ “Investigative And Charging Priorities,” including “Immigration  Enforcement” (capitalization in original), and specifically including 8 U.S.C. §§ “1324-1328” as announced in a  February 5, 2025 memorandum from Attorney General Pam Biondi. 

Included in 8 U.S.C. §§ 1324 through 1328 are four key immigration provisions: 

● INA § 274 (a felony prohibiting, among other things, encouraging or inducing a noncitizen “to come to, enter,  or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or  residence is or will be in violation of law”), 

● INA § 274A (relating to the employment eligibility verification Form I-9 paperwork obligations),  ● INA § 274B (noted above), and 

● INA § 274C (penalties for “document fraud”) including preparing, filing or assisting another “in preparing or  filing… any application for benefits under the INA, or any document required under the INA, or any document  submitted in connection with such application or document, with knowledge or in reckless disregard of the  fact that such application or document was falsely made” (Note that the term “falsely make” means “to  prepare or provide an application or document, with knowledge or in reckless disregard of the fact that:

o the application or document contains a false, fictitious, or fraudulent statement or material  representation, or 

o has no basis in law or fact, or 

o otherwise fails to state a fact which is material to the purpose for which it was submitted.” (Emphasis and bullet points added.)

Given the newly announced focus on immigration enforcement, employers that sponsor noncitizens for employment based immigration benefits may wish to consider reviewing (under the direction of legal counsel who can afford  privileges and protections under the attorney-client privilege and the work product exception to disclosure) all  internal immigration compliance protocols and practices. 

This proactive measure, in general, might include a review of the employer’s: 

(a) general and immigration-related recruitment and hiring policies, practices and activities; 

(b)Department of Labor (DOL) H-1B labor condition application (LCA) and PERM labor certification compliance; 

(c) Form I-9 (employment eligibility verification) and E-Verify policies and records; and

(d) the accuracy of all or a representative random sampling of the factual representations contained in petitions  and applications previously submitted to any federal immigration agency (DHS, State and DOL) in  connection with requests for employment-based immigration benefits.

Recent Presidential Announcements

On February 25, 2025, President Trump, with Secretary of Commerce (Howard Lutnick) at his side, announced a new  “Gold Card” that would grant permanent residency and a path to US citizenship for noncitizens who invest $5 million.  Unlike the current tax treatment of US citizens and permanent residents, $5 million Gold Card investors who receive  a green card through this route would be exempt from US taxes on income and assets earned or held abroad. Details  of the program, according to Secretary Lutnick, were to be revealed in two weeks.

As the White House transcript of remarks before a February 26, 2025 cabinet meeting reflects, he added: 

I get calls from, as an example, companies where they want to hire the number one student at a school.  A person comes from India, China, Japan, lots of different places, and they go to Harvard, the Wharton  School of Finance. They go to Yale. They go to all great schools. And they graduate number one  in their class, and they are made job offers, but the offer is immediately rescinded because you  have no idea whether or not that person can stay in the country. I want to be able to have that  person stay in the country. 

These companies can go and buy a gold card, and they can use it as a matter of recruitment.

He returned to the topic in his March 4, 2025 State of the Union address:

With [the] goal [of balancing the budget] in mind, we have developed in great detail what we are calling  the gold card, which goes on sale very, very soon. For $5 million, we will allow the most successful job creating people from all over the world to buy a path to US citizenship.

It’s like the green card but better and more sophisticated. And these people will have to pay tax in our  country. They won’t have to pay tax from where they came. The money that they’ve made, you wouldn’t  want to do that. But they have to pay tax, create jobs. They’ll also be taking people out of colleges and  paying for them so that we can keep them in our country instead of having them be—being forced out.  No. 1 at the top school, as an example, being forced out and not being allowed to stay and create  tremendous numbers of jobs and great success for a company out there.

Many questions about the Gold Card proposal remain unanswered, including:

● How can the President issue immigrant visas or green card status in the absence of federal immigration  and tax legislation?

● Will the Gold Card visa program supplant or run concurrently with the existing EB-5 immigrant visa  program which requires only a minimum investment of $800,000?

● Given the existing statutory limit on the annual number of immigrant visas that may be issued, what  will be stated as legal authority for the unlimited issuance of permanent residency visas through the  Goal Card program?

Notwithstanding doubts about how this program can be lawfully launched, President Trump’s remarks about the  deserving need of US employers to hire noncitizens with degrees from American colleges and universities are  heartening.

Conclusion

No matter the fate or desirability of the Green Card visa program, and the possibly more welcoming attitude toward  immigration benefits for American-degreed noncitizens, US employers must nevertheless reckon with the added  burdens of time, expense and energy imposed by agency actions implementing President Trump’s post-inauguration  Executive Orders. The complexity of the attendant legal issues and magnitude of potential business risks suggest  that they should (pardon the brazen self-promotion) keep their immigration counsel on speed dial.

[Blogger’s Note: This post, coauthored by my colleague, Amanda Adamczenko, and me, presents a “win-win-win” opportunity — a rara avis in the current climate. For the sake of all law-abiding immigration stakeholders, let’s hope that it gains traction.]

With an array of executive orders (EOs), President Trump has affirmed his commitment to controlling immigration as a core priority of his second term, emphasizing the need to enforce stricter immigration policies and prioritize national security. Since taking office, he has followed through on his promise to launch a whole-of-government campaign to apprehend and deport millions of foreign nationals residing in the United States without legal status. At the same time, he has maintained support for legal immigration, recognizing the importance of skilled workers, especially those with expertise in AI technologies.

An efficient and surefire way to implement these Trump administration priorities—both stanching illegal immigration and fostering legal immigration—is readily available in the form of a revitalized and expanded stateside visa renewal program similar to a pilot program that expired on March 1, 2024. Under the pilot, up to 20,000 holders of H-1B visas—issued to foreign workers in specialty occupations—were allowed to renew their visas while remaining in the U.S. by submitting applications to the State Department from within the country.

Applicants for stateside visa renewals are required to complete their visa application (Form DS-160) online, pay the required fee, and mail their original passport to a designated State Department address in the United States. The DS-160 asks an array of probing questions, including present address and past activities that may reveal either compliance with or violations of U.S. immigration laws. Possessed of this knowledge, State Department officials would thus have a ready means of implementing a January 20, 2025 EO, “Protecting the United States from Foreign Terrorists and Other National Security and Public Safety Threats.” This EO directs the secretary of state, in cooperation with the attorney general, the secretary of homeland security, and the director of national intelligence to “promptly … vet and screen to the maximum degree possible all aliens who … are already inside the United States …”

Another EO, “One Voice for America’s Foreign Relations,” signed on February 12, 2025, mandates significant reforms within the U.S. Foreign Service to ensure alignment with the president’s foreign policy agenda. The secretary of state is directed to implement changes in recruitment, performance evaluation, retention standards, and training programs to achieve this alignment. While the order does not directly address visa issuance, it emphasizes streamlining U.S. foreign relations and improving operational efficiency, measures which would be advanced by reintroducing the stateside visa renewal program.

Expanding this program is a practical solution to both strengthen immigration enforcement and attract skilled workers. If any noncitizen applicants for stateside visa reissuance are identified as national security threats, criminals, or terrorists, the Bureau of Diplomatic Security (DS), working with U.S. Immigration and Customs Enforcement (ICE), could readily target these individuals for apprehension and removal from the United States.

By allowing stateside visa reissuance, the State Department could also better control the flow of foreign nationals who seek U.S. visas, aligning immigration policies with broader national interests in accordance with the EOs. Thus, consular officers at posts abroad can focus on high-priority cases, such as in-person visa interviews, applications warranting more intense, multi-agency screening known as “administrative processing,” and cases involving national interest exemptions from any forthcoming travel bans or other restrictions. With more resources allocated to these outside-the-U.S. tasks, the overall visa adjudication process would be streamlined.

A revamped and expanded stateside visa renewal program would also buttress another EO, President Trump’s “America First” trade policy for global competitiveness. By facilitating stateside visa issuance for qualified workers and students, the U.S. would be better positioned to attract the best global talent, reinforcing its competitive edge in innovation and economic growth. Pursuing this goal, however, would require expanding the domestic visa renewal program to include other categories beyond the H-1B visa, such as E, L, and O work visa categories. Dependent spouses and minor children of workers should also be included, along with “national-security-sensitive” categories, like F-1 student visas and J-1 exchange visitors.

The launch of a robust stateside visa reissuance program would prove a “win-win-win” scenario—one that is fully aligned with the objectives of the EOs:

  • National security threats would be identified and addressed swiftly;
  • Consular officers could dedicate their time to issuing visas to the most deserving applicants and preventing the undeserving from gaining entry to the United States;
  • America’s global trade would be enhanced;
  • Noncitizens who qualify for stateside visa renewal would avoid unnecessary international travel and the long delay in scheduling an in-person interview at a consular post abroad (particularly in light of the new “visa-issued-in-the-last 12 months” restriction on interview waivers announced by the State Department on 18 February 2025); and
  • Costs and operational disruptions for businesses and academic institutions that rely on skilled foreign labor and students would be minimized.

In sum, by launching an expanded domestic visa reissuance program, the Trump administration would produce an immigration policy that achieves both security goals and economic growth, ensuring that the U.S. remains a top destination for talent and innovation while better safeguarding our borders.

[This post first appeared in Mobility News, republished with permission of the Worldwide Employee Relocation Council (WERC).]