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Host and Co-Chair of Greenberg Traurig’s Global Immigration & Compliance Group, Kate Kalmykov, welcomes Kelly Bunting, GT colleague and labor and employment practice shareholder, to discuss the complex overlap between US immigration and employment law.

They explore current challenges facing employers, including social media issues, religious and disability accommodations, wage and hour litigation, and heightened compliance in M&A deals.

Kelly offers practical insights on drafting cross-border employment agreements, managing restrictive covenants, and training managers to avoid liability.

The episode highlights the importance of coordinated efforts between immigration and employment counsel, especially when onboarding foreign nationals and maintaining compliance.

Tune in to gain actionable tips for handling workforce issues in a dynamic legal environment and the ongoing competition for global talent.

Click here to listen to the full episode.

Despite heightened scrutiny, evolving adjudication standards, and continued operational pressure on U.S. immigration agencies, 2026 may prove a viable — and even advantageous — year for U.S. employers to sponsor global talent. The employers who may see the greatest success might approach sponsorship strategically, plan well in advance, and incorporate lessons learned from government practices and policy shifts that emerged throughout 2025.

Rather than retreating from sponsorship, forward-thinking employers might use immigration as a workforce planning, retention, and risk-management tool. The following 26 practical, forward-looking considerations may aid employers, in-house counsel, human resources (HR), and global mobility teams in navigating employment-based immigration successfully in 2026.

Strategic Workforce Planning

1. Start immigration planning earlier — and gain flexibility
Longer processing times at U.S. Citizenship and Immigration Services (USCIS), the Department of Labor, and U.S. consulates make early planning essential. Beginning sponsorship discussions 12-24 months in advance may allow employers to sequence filings, preserve eligibility for multiple options, and avoid last-minute crisis filings driven by expiring status.

2. Use immigration as a talent-retention tool
Clear sponsorship roadmaps may help reduce employee uncertainty and improve retention. Employees who understand their long-term immigration strategy may prove more likely to stay engaged, productive, and committed — particularly in competitive or specialized roles.

3. Build parallel strategies where possible
Relying on a single visa category may increase risk. Where feasible, employers should consider parallel pathways (e.g., H-1B with O-1, L-1 with PERM initiation, or EB-2 alongside EB-1 evaluation) to preserve options if adjudication trends or visa bulletin movement shift unexpectedly.

4. Align immigration strategy with business objectives
USCIS adjudications are strongest when immigration filings reflect real business needs. Employers should consider positioning their immigration strategy to align with organizational growth, client demands, expansion plans, and leadership structures — not simply with individual employee preferences.

Nonimmigrant Visas: Opportunities in 2026

5. Treat the H-1B visa as one option — not the only option
While the H-1B lottery remains competitive, approval rates for well-documented petitions remain strong. However, employers may wish to avoid over-reliance on the H-1B and evaluate alternative classifications early for critical talent.

6. Use L-1 intracompany transfer visas strategically
For multinational employers, L-1A and L-1B visas remain powerful tools when structured correctly. Clear corporate documentation, well-defined managerial or specialized knowledge roles, and thoughtful job descriptions may be essential to avoid requests for evidence (RFEs) or denials.

7. Leverage the O-1 extraordinary ability visa for high-impact talent
O-1 adjudications continue to be favorable when evidence is curated strategically and presented through a compelling narrative. Employers should consider the value of awards, press, publications, and industry recognition when building these cases.

8. Plan thoughtfully for remote and hybrid work
USCIS continues to scrutinize work location, supervision, and employer control. Employers must clearly document where work will be performed, who supervises the employee, and how company policies apply in remote or hybrid environments.

9. Maintain internal consistency across HR, payroll, and filings
Discrepancies between immigration filings, internal records, payroll data, and public-facing information remain a leading cause of RFEs. Consistency is one of the most effective — and simplest — ways to reduce potential adjudication friction.

PERM and Immigrant Sponsorship

10. View Permanent Labor Certification (PERM) as a long-term investment in workforce stability
Initiating PERM early may provide strategic flexibility, particularly during periods of visa retrogression or limited immigrant visa availability. Early filings may preserve adjustment of status eligibility and long-term workforce continuity.

11. Draft job descriptions that reflect real business need
Overly restrictive or generic job requirements might increase audit risk. Job descriptions that accurately reflect the employer’s operational needs, industry standards, and internal practices might best support both PERM and I-140 adjudications.

12. Treat prevailing wage determinations as planning tools
Prevailing wage results affect compensation strategy, budgeting, and employee retention. Employers might anticipate wage outcomes early in an effort to avoid last-minute compensation challenges or employee dissatisfaction.

13. Monitor visa bulletin trends proactively
Visa bulletin movement remains unpredictable. Strategic timing of I-140 filings and adjustment of status applications may preserve work authorization benefits and reduce uncertainty for sponsored employees.

14. Coordinate nonimmigrant extensions with immigrant filings
Thoughtful sequencing of extensions and immigrant filings may help avoid gaps in work authorization, reduce stress on employees, and shepherd continued compliance during long processing periods.

Government Technology and Adjudication Trends

15. Assume filings are reviewed holistically
USCIS increasingly reviews both an employer and an employee’s full immigration history. Prior filings, inconsistencies, and past representations matter. Parties may wish to prepare their case with awareness of the broader record.

16. Use RFEs as an opportunity to strengthen the case
While RFEs remain common, well-crafted responses sometimes result in approvals. Employers may wish to view RFEs as a chance to clarify the record, reinforce credibility, and address adjudicator concerns directly.

17. Prepare confidently for USCIS and Immigration and Customs Enforcement (ICE) site visits
Employers with organized records, trained managers, and clear compliance protocols generally navigate site visits smoothly. Advance preparation may reduce disruption and risk.

18. Treat compliance as an ongoing process
Employers may wish to maintain their I-9 compliance, public access files, and recordkeeping consistently — not only in response to audits. Ongoing compliance may reduce exposure and may help build institutional resilience.

19. Benefit from greater inter-agency clarity
While scrutiny has increased, adjudication standards are becoming more standardized across agencies. Employers who understand these patterns may be able to plan more predictably and defensibly.

Adjustment of Status and Consular Processing

20. Use adjustment of status filings strategically
Adjustment filings provide valuable benefits, including employment authorization and advance parole. These benefits might offer flexibility for both employers and employees during periods of immigrant visa backlog.

21. Plan international travel with foresight
Travel during pending filings requires careful coordination. Planning in advance may help avoid unintended abandonment of applications or delays in reentry.

22. Approach consular processing with preparation — not fear
Consular processing remains a reliable pathway when stakeholders have clear documentation and consistent records. Proactive preparation may minimize delays and refusals.

Compliance Considerations

23. Centralize immigration data and records
Centralized systems may help improve visibility, consistency, and compliance while reducing administrative burden and audit risk.

24. Train HR personnel and managers regularly
Well-informed HR teams and managers may prove critical to successful sponsorship. Regular training may aid in providing accurate representations and consistent practices across the organization.

25. Conduct proactive internal audits
Internal audits may help identify weaknesses before they become liabilities. Relevant entities should consider using internal audits as opportunities for improvement rather than fault-finding exercises.

26. Document decision-making and sponsorship rationale
Employers may wish to maintain internal records explaining why they made sponsorship decisions, including business need, role criticality, and selection criteria. Clear documentation may help support consistency across filings, strengthen responses in the event of audits or RFEs, and demonstrate good-faith compliance if government agencies later review sponsorship practices.

In 2026, employers that plan early, communicate clearly, and embrace compliance might successfully sponsor global talent while also gaining a durable competitive advantage.

The U.S. government is rapidly expanding its use of AI across immigration and visa adjudications. While much of the public discussion focuses on efficiency and enforcement, these developments carry concrete and immediate implications for employers sponsoring foreign talent and investors pursuing U.S. immigration pathways, including EB-5, E-2, L-1, H-1B, O-1, and employment-based green cards.

AI-driven systems such as StateChat, ImmigrationOS, and the U.S. Citizenship and Immigration Services (USCIS)’s Evidence Classifier are reshaping how immigration agencies review petitions, assess credibility, detect inconsistencies, and prioritize cases. As a result, employers and investors may assume that filings are increasingly scrutinized not only by human adjudicators, but also by automated tools trained to flag anomalies across large data sets.

StateChat: Faster Policy Interpretation, Less Adjudicator Discretion

The Department of State’s generative AI platform, StateChat, is designed to help consular officers and staff rapidly interpret internal policy guidance, draft communications, and analyze cables. Now widely deployed across the agency, the tool accelerates decision-making and reduces reliance on individualized judgment.

For employers and investors, this might mean:

  • Consular officers may apply policy guidance uniformly and rigidly, with less tolerance for creative or borderline arguments.
  • Inconsistent explanations across petitions, applications, or prior filings may be identified more quickly.
  • Novel fact patterns—common in emerging business models, startup structures, or complex investment vehicles—may face heightened scrutiny if they do not map cleanly onto existing policy frameworks.

Well-documented, policy-aligned submissions are becoming more critical, particularly for treaty investor visas, multinational executive transfers, and investor-backed enterprises.

ImmigrationOS: Expanded Data Integration and Risk Profiling

U.S. Immigration & Customs Enforcement’s ImmigrationOS platform aggregates data from multiple government and commercial sources to identify visa overstays, compliance gaps, and enforcement priorities. While positioned as a tool focused on high-risk individuals, its breadth has implications beyond enforcement actions.

For employers, ImmigrationOS underscores the importance of:

  • Maintaining accurate, consistent records across immigration filings, I-9s, payroll, and public-facing business information.
  • Ensuring that changes in job duties, worksite location, compensation, or corporate structure are properly reflected in amended or new filings.
  • Understanding that discrepancies may be detected algorithmically, not just during audits or site visits.

For investors, particularly EB-5 and E-2 applicants:

  • Source-of-funds narratives, business ownership records, and financial histories must align precisely across filings and databases.
  • Prior visa applications, travel histories, and business registrations may be cross-referenced in ways that were not previously routine.
  • Errors that once went unnoticed may now trigger delays, requests for evidence, or referrals for further review.

USCIS Evidence Classifier: Faster Review, Less Margin for Error

USCIS’s Evidence Classifier uses machine learning to automatically categorize and tag documents submitted with petitions. While intended to increase efficiency, it also standardizes how evidence is surfaced to adjudicators.

For petitioners, this might mean:

  • Disorganized, poorly labeled, or inconsistently presented evidence may be misunderstood or deprioritized.
  • Key documents that do not clearly align with expected categories may receive less attention.
  • Adjudications may move faster, leaving less opportunity to cure deficiencies through discretionary review.

Employers filing high-volume cases or investors submitting document-intensive petitions should consider precision in document organization, naming conventions, and explanatory exhibits.

Strategic Takeaways for Employers and Investors

As AI becomes embedded in immigration adjudications, the practical impact is clear:

  • Consistency matters more than ever—across filings, agencies, and years.
  • Data hygiene is critical—errors, omissions, or informal practices may create risk.
  • Policy-aligned narratives might outperform creative ones, particularly in adjudications automated tools influence.
  • Preparation should anticipate machine review, not just human judgment.

AI may speed adjudications, but it also reduces tolerance for ambiguity. Employers and investors who approach immigration strategy with rigor, documentation discipline, and forward-looking compliance planning may be best positioned to navigate this evolving landscape. The future of U.S. immigration adjudications is not just digital—it is algorithmic. Understanding that shift is now a business and investment imperative.

USCIS has released new implementation guidance on the $100,000 supplemental fee established under the Sept. 19, 2025, Presidential Proclamation “Restriction on Entry of Certain Nonimmigrant Workers.” The update provides clarity for U.S. employers and their HR and legal teams: most domestic H-1B filings will not be subject to the new fee, while exceptions for overseas hires will be approved only in extraordinarily rare circumstances.

Effective Date and Scope

The $100,000 fee applies only to new H-1B petitions filed on or after Sept. 21, 2025, for foreign nationals outside the United States who will require visa issuance and initial entry. Petitions filed before that date are not subject to the payment. USCIS confirmed that change of status petitions for individuals already in the United States, as well as amendments, extensions, and change of employer filings, are exempt. This means the majority of H-1B activity, including extensions and transfers filed domestically, may proceed without additional cost or disruption.

An example of an H-1B petition subject to the $100,000 fee would be a new petition filed by a U.S. employer for a software engineer currently residing in India who will require visa issuance and entry to begin employment in the United States. The petition falls within the scope of the fee because the individual is outside the United States and seeking initial H-1B admission. In comparison, an F-1 student residing in the United States whose U.S. employer files an H-1B change of status petition is not subject to the fee. The student is already in the United States and is not applying for visa issuance or entry from abroad, which makes the filing a domestic petition and, therefore, exempt under the new USCIS guidance.

Exception Requests: ‘Extraordinarily Rare’ and Limited in Scope

USCIS announced that the secretary of homeland security will grant exceptions to the $100,000 fee only in “extraordinarily rare circumstances.” Employers must demonstrate that no American worker is available to fill the position, that the H-1B worker’s employment is in the national interest, that the individual poses no threat to the security or welfare of the United States, and that payment of the fee would significantly undermine U.S. interests. All exception requests, including supporting evidence, must be submitted by email to H1BExceptions@hq.dhs.gov. USCIS emphasized that approvals will be granted sparingly and only when all four criteria are met.

Employer Impact and Strategic Considerations

For HR and legal teams, the update may provide meaningful relief and operational clarity. Domestic filings, including routine extensions, amendments, and transfers, may continue without change. However, employers may wish to evaluate overseas hiring plans and budget accordingly for new H-1B petitions requiring visa issuance abroad. Employers may wish to treat exception requests as a last-resort strategy for mission-critical hires, and these should be supported with detailed documentation aligned to USCIS’s four factors. Employers should also monitor forthcoming DHS guidance expected to address payment procedures and confirmation of receipt for exception submissions.

Policy Context

According to DHS and the White House, the purpose of the $100,000 fee is to ensure that H-1B hiring aligns with high-skill, high-wage positions, and to prioritize U.S. workers. The exemption for domestic filings reflects the government’s acknowledgment that employers operating within the United States already comply with prevailing wage, attestation, and labor condition requirements.

Key Takeaway

The USCIS clarification limits the immediate operational impact of the new rule. For some employers, H-1B processes conducted within the United States remain unaffected. The fee primarily targets new petitions for overseas hires, while exception requests will be available only in rare, well-documented cases. Employers may wish to assess overseas hiring needs, model potential costs, and maintain compliance under the evolving H-1B framework.

In this timely episode of Immigration Insights, hosts Kate Kalmykov and Courtney Noce, co-chairs of Greenberg Traurig’s Global Immigration & Compliance Group, address major developments in the U.S. immigration landscape. 

They discuss the administration’s surprise $100,000 fee on new H-1B petitions, initial confusion over its application, and the ongoing quest for clarity on exemptions and compliance. 

Kate and Courtney also delve into the proposed overhaul of the H-1B lottery to a points-based system, the rollout of Project Firewall, and the implications for wage compliance. 

Lastly, the episode highlights the newly introduced Gold Card and Platinum Card concepts, comparing them to EB-5 and examining what they mean for individual investors and U.S. business sponsors. 

Tune in for information on what these changes may mean for the future of U.S. immigration, global talent acquisition, and foreign investment.

Click here to listen to the full episode.

The federal government shutdown is disrupting some immigration functions. Most significantly, the U.S. Department of Labor (DOL)’s FLAG system is down, preventing the filing of LCAs, prevailing wage requests, and PERM applications. While U.S. Citizenship and Immigration Services (USCIS) and the U.S. Department of State (DOS) remain operational due to fee-based funding, employers should prepare for delays across multiple touchpoints, including filings, visa processing, onboarding, and compliance audits.

U.S. Department of Labor (DOL) – FLAG System and OFLC Operations

DOL’s Foreign Labor Application Gateway (FLAG) is currently inaccessible. Employers cannot file Labor Condition Applications (LCAs), Prevailing Wage Determinations (PWDs), or PERM applications. Since certified LCAs are required for H-1B, H-1B1, and E-3 petitions, new filings are effectively on hold until the system is restored.

During shutdowns, the Office of Foreign Labor Certification (OFLC) ceases all operations, including case processing, audits, and responses to inquiries. The Board of Alien Labor Certification Appeals (BALCA) and administrative law judge dockets are also placed on hold. Public systems and websites are typically taken offline.

Importantly, the DOL may suspend or toll certain deadlines:

  • LCAs: Employers should not be penalized for filing delays caused by the shutdown.
  • PWDs: Recruitment timelines linked to wage determinations may be extended.
  • PERM: Strict recruitment and filing deadlines (e.g., the 180-day recruitment window and 30-day filing period) are expected to be tolled.

Why H-1B Petitions Still Cannot Be Filed Without LCAs

Even though the DOL suspends deadlines, employers still may not submit H-1B petitions to USCIS without an LCA certified by the DOL. This is because:

  • The Immigration and Nationality Act requires a certified LCA to be included with every H-1B petition.
  • USCIS has no authority to waive this statutory prerequisite.
  • The tolling of deadlines protects employers from DOL-specific compliance violations, but it does not change the filing requirements with USCIS.

As a result, H-1B filings that depend on new LCAs are frozen until the FLAG system comes back online. Employers who already have certified LCAs in place may still proceed with filings.

U.S. Citizenship and Immigration Services (USCIS)

USCIS remains open because it is fee-funded. However, several programs that rely on appropriated funds—including the Conrad 30 J-1 Waiver Program, and the Special Immigrant Religious Worker Visa Program—are suspended until funding resumes. Premium processing remains available, but cases dependent on DOL certifications might stall.

In prior shutdowns, USCIS has sometimes accepted late filings if the delay was directly tied to the shutdown, though reliance on such discretion may be risky and should be evaluated with counsel.

U.S. Department of State (DOS) – Consulates and Waivers

Consular visa and passport operations continue under a fee-based structure, though a prolonged shutdown may reduce staffing or limit services at smaller consulates. J-1 waiver adjudications through the Waiver Review Division may be delayed. Employees traveling abroad for visa stamping should plan ahead and allow additional time.

U.S. Customs and Border Protection (CBP)

CBP ports of entry remain open as essential services, but processing times at airports and land borders may lengthen. Employees should be reminded to carry complete documentation of their immigration status when traveling internationally.

U.S. Immigration and Customs Enforcement (ICE)

ICE continues enforcement and removal operations, and the Student and Exchange Visitor Program (SEVP) remains operational. However, certain compliance activities—such as I-9 audits and Notices of Inspection—might pause during the shutdown.

E-Verify and the Optional Alternative Remote I-9 Verification Process

While E-Verify was non-operational since the date of the government shutdown, operations have been restored. Employers may now run E-Verify for all hires onboarded since the shutdown and continue using the system.

The Optional Alternative Remote I-9 Verification Process

In August 2023, DHS introduced an optional alternative process that allows qualified E-Verify employers to complete the identity and work authorization verification steps remotely, instead of conducting an in-person physical document inspection. To use this option, employers must:

  • Be enrolled in E-Verify and in good standing;
  • Review copies of the employee’s documents remotely and conduct a live video interaction with the employee presenting the documents; and
  • Create the corresponding E-Verify case within three business days of the employee’s start date.

During the shutdown, employers may continue to use the remote verification process for new hires. However, they must still complete the I-9 verification steps within the three-day window, even if they cannot create the E-Verify case immediately. Once the system is restored, cases should be created promptly. Employers may wish to refrain from taking adverse action against employees while E-Verify cases remain pending due to the outage.

Federal contractors with E-Verify obligations should monitor instructions from contracting agencies, as compliance modifications may be necessary.

Social Security Administration (SSA)

During past shutdowns, the SSA has halted the processing of new Social Security Number applications. This may delay onboarding for certain foreign national employees who require SSNs.

Key Takeaways for Employers

  • H-1B and other LCA-dependent filings are delayed until the FLAG system is restored; deadlines for LCAs, PWDs, and PERM filings may be tolled.
  • USCIS remains open, including premium processing, but filings dependent on DOL certifications are blocked.
  • Consular and port-of-entry delays are likely, and J-1 waiver adjudications may pause.
  • ICE enforcement continues, but audits and inspections are paused.
  • E-Verify is offline; complete I-9s as usual, consider using the remote verification process if eligible, and reconcile E-Verify cases once restored.
  • SSA delays may affect new hires requiring Social Security Numbers.

On Sept. 19, 2025, the U.S. Department of Labor (DOL) announced Project Firewall, a new enforcement initiative focused on compliance with employers’ obligations under H-1B visa program with respect to hiring and retention, wage and hour, and other employment practices.  Project Firewall’s stated goal is “to safeguard the rights, wages, and job opportunities of highly skilled American workers by ensuring employers prioritize qualified Americans when hiring workers and holding employers accountable if they abuse the H-1B visa process.” The initiative calls for enhanced agency investigations and a wide range of enforcement practices including payments of back wages, civil fines, and disbarment from the H-1B program.

Main Features

  • Investigations into employer’s H-1B practices will be certified personally by the secretary of labor and conducted by DOL’s Office of immigration Policy (OIP), Employment and Training Administration (ETA) and Wage and Hour Division (WHD), in coordination with Department of Justice (DOJ) Civil Rights Division, Equal Employment Opportunity Commission (EEOC), and U.S. Customs and Immigration Services (USCIS).
  • Enforcement actions resulting from these investigations may include:
    • recovery of back wages,
    • monetary fines, and
    • employer debarment from the H-1B program.

What May Be Inferred from Past Practices

DOL announcement provides little practical detail on the nature and scope of investigations; however, past DOL and USCIS practices may provide some insight into what employers might be facing as part of Project Firewall:

  • Unannounced site visits to verify H-1B employees’ job duties stated in the H-1B petitions versus performed, wages promised versus paid, other work conditions, or benching (non-payment during assignment gaps) of H-1B employees.
  • Audits of employers’ records to verify actual wages, benefits offered, and compliance with LCA regulations.
  • Challenges to employers’ job descriptions or occupational classifications.

Legal Risks for Employers

  • Financial – Potential for substantial back wages, fines, and penalties.
  • Program Debarment – Employers found in violation may be barred from using the H-1B program for a prescribed period.
  • Discrimination Investigations – DOJ involvement raises risks of claims of unequal treatment of U.S. workers, including, but not limited to, discriminatory hiring practices, lower wages paid due to availability of foreign labor, or unlawful displacement.
  • Whistleblower Complaints – Retaliation claims by employees reporting suspected abuse may add to liability.

Practical Considerations for Employers

  • Expect site visits, audits, and document requests and advise your H-1B employee population, HR, and security personnel accordingly. Develop an action plan. Ensure job titles and duties match filings.
  • Maintain clear, organized records; make sure all required paperwork is accurate and accessible. Stress-test your HR systems for rapid audit response. Introducing or maintaining “job banks” with standard, uniform, and clear job descriptions and minimum requirements is recommended.
  • Introduce or follow the existing practices to ensure proper tracking of any changes to H-1B workers’ work conditions, especially moves to a new entity, location, or dissimilar role – any of these may require an action with respect to their existing H-1B authorization. 
  • Periodically audit Public Access Files for your H-1B workers to enhance compliance, with prevailing and actual wage requirements and paperwork maintenance guidelines.
  • Train HR, managers, and recruiters on lawful hiring practices, specifically, not to favor H-1B candidates over qualified U.S. workers; document good-faith efforts to hire U.S. workers; avoid job postings or policies that appear to exclude U.S. workers.
  • Review contracts with third-party staffing firms to enhance compliance with H-1B regulations across the supply chain.
  • Brief executives and board members on potential penalties and reputational risks.
  • Align messaging: emphasize prioritization of American workers while maintaining compliance for foreign hires.

Key Takeaway

Project Firewall represents a fundamental increase in the level of H-1B enforcement. Employers should expect investigations and consider acting now to strengthen compliance programs and mitigate legal exposure.

The line between permissible business visitor activities and unauthorized employment has come under heightened scrutiny. A recent large-scale raid – where foreign nationals were found working on B-1/ESTA entries – demonstrates how costly missteps can be.

When a B-1 Visitor or ESTA Is Appropriate

The B-1 business visitor visa (and ESTA under the Visa Waiver Program) authorizes foreign nationals to enter the United States for limited business purposes. The Department of State defines permissible activities in the 9 FAM 402.2-5. Key examples include:

  • After-Sales Service: Installing, servicing, or training U.S. workers on machinery or equipment purchased from a company outside the United States, when required by contract of sale (see 9 FAM 402.2-5(E)(3)). Ensuring that any outside companies at your worksite are following federal immigration laws.
  • Training: Receiving training in the United States from a parent, affiliate, or related company, provided the training is not available in the home country and does not involve productive employment (9 FAM 402.2-5(F)).
  • Proprietary Knowledge: Employees of a foreign company may enter to share specialized or proprietary knowledge with a U.S. affiliate, so long as the activities are consultative and not hands-on productive work (9 FAM 402.2-5(E)).
  • Business Development: Attending meetings, conferences, trade shows, or negotiating contracts (9 FAM 402.2-5(B)).

What Is Not Permitted

  • Engaging in day-to-day activities for a U.S. business
  • Performing hands-on labor that directly contributes to U.S. operations
  • Receiving compensation from a U.S. source for work performed in the United States

Eligibility Under the B-1/ESTA Depends on:

  • Nature of the activity (business vs. productive work)
  • Source of remuneration (foreign vs. U.S. payroll)
  • Duration and frequency of stays (short-term, defined visits vs. ongoing assignments)

Employers should review activities against the FAM guidance and ensure travel is narrowly tailored.

Visa Alternatives to Consider

When business visitor status is not appropriate, companies should explore work-authorized visas. Many allow short-term, intermittent, or part-time structures:

  • H-1B: Specialty occupation roles, can be part-time or project-based.
  • L-1: Intra-company transferees, including executives, managers, and specialized knowledge staff.
  • O-1: Extraordinary ability visa, structured around engagements or projects.
  • E-2: Treaty investor visas which allow for the transfer of non-owner employees who have specialized skills that are essential to the operation of a US enterprise.

Training Visa Options: H-3 and J-1

For situations where training, not employment, is the goal:

  • H-3 Trainee Visa (9 FAM 402.10): For structured training programs unavailable abroad, provided the training benefits the employee’s career outside the United States.
  • J-1 Trainee or Intern: Allows structured programs sponsored by designated organizations, often more flexible but with programmatic requirements.

Companies may also consider developing their own training programs to lawfully host trainees in the United States with proper visa sponsorship.

Why Compliance Matters

The recent enforcement action underscores that the government is closely scrutinizing use of visitor visas. Companies should:

  • Audit all B-1/ESTA travel against 9 FAM provisions
  • Train business units on permissible vs. impermissible activities

Bottom line: Visitor visas are a powerful tool for global commerce, but they cannot substitute for proper work authorization. Reviewing travel under the 9 FAM 402.2 framework is essential to compliance, business continuity, and protecting your workforce.

On Sept. 6, 2025, the U.S. Department of State issued updated guidance directing that nonimmigrant visa (NIV) applicants (E, F, H, J, L, O, etc.) must generally schedule their visa interview appointments at a U.S. embassy or consulate in their country of nationality or legal residence.

For nationals of countries where routine NIV processing is not available, the guidance specifies designated embassy or consulate posts.

Below is an overview of what employers and foreign national employees should be aware of under the new policy, and practical considerations to help mitigate its impact.

What the Policy Says

Applicants must schedule interviews in their country of nationality or country of residence. If applying based on residence (rather than nationality), the applicant must be able to demonstrate legal residence in that country. For certain countries without routine visa operations, the Department of State has designated specific embassies or consulates (for example, Iran → Dubai; Venezuela → Bogotá; Russia → Astana or Warsaw; Ukraine → Krakow or Warsaw; etc.). Visa application fees remain non-refundable and non-transferable, even if the applicant is found ineligible due to interview location. Applicants applying outside of their country of nationality or residence may face longer wait times for appointment scheduling. Existing appointments generally will not be cancelled. Exceptions apply for diplomatic and official visas, certain UN-related visas, and humanitarian or medical emergencies.

Practical Implications for Employers and Employees

This policy shift has several practical implications for companies sponsoring nonimmigrant visas and the foreign nationals they employ.

Applicants may face longer appointment backlogs in their country of residence or nationality, since the option of scheduling in third countries with shorter wait times has been curtailed. Employers should factor in potential delays when planning start dates, project timelines, and mobility schedules.

Employees applying based on residence must provide evidence of legal residence in that country (for example residence permits, lease agreements, local tax records, utility bills, or visa stamps). Employers and immigration teams may wish to assist employees in gathering this documentation before scheduling.

Some employees temporarily abroad for business or tourism, but not legally U.S. residents, will need to return to their country of residence (or designated processing post) to apply, potentially incurring additional travel, lodging, and logistical expenses. Employers may wish to budget for or mitigate these costs in their mobility or relocation planning.

If an applicant mistakenly schedules an appointment in a third country without satisfying the residence requirement, there is risk of delays, additional scrutiny, or loss of the processing fee. Employers should coordinate with counsel or local embassy guidance when booking appointments to enhance compliance.

HR and immigration teams should consider reviewing internal visa onboarding or mobility checklists, updating processes, training employees and mobility stakeholders about the new requirement, verifying residence eligibility, identifying appropriate consular posts, and building buffer time into planning cycles.

Individuals with existing appointments at embassies or consulates where they are applying as third-country nationals may wish to consider cancelling those appointments and rebooking in their home country. Immigration practitioners are reporting that consular officers in some locations are informing applicants they must process their cases in their home country. This is not being applied consistently at all consulates, which means applicants may face uncertainty or inconsistent treatment if they proceed with a third-country appointment.

Employer Considerations

To address this change proactively, employers may wish to consider:

  1. Reviewing all pending or upcoming NIV cases and confirming whether the interview location aligns with the new requirement;
  2. Ensuring employees gather residence evidence in advance of booking appointments;
  3. Starting visa planning earlier to accommodate possibly longer appointment wait times;
  4. Incorporating additional buffer time in project and mobility timelines, especially when international relocation or training assignments are involved;
  5. Budgeting for potential extra travel or lodging costs if employees must return to their country of residence or designated processing post;
  6. Advising employees with third-country appointments to cancel and rebook in their home country, given reports of consular officers enforcing the residence-based rule;
  7. Coordinating with local consular resources or outside counsel in the countries involved to monitor appointment availability and evolving consular practices; and
  8. Communicating the change clearly to employees, especially those on temporary assignments or remote postings, so they understand the new constraints and can plan accordingly.

Conclusion

The September 2025 Department of State directive requiring NIV applicants to interview in their country of nationality or legal residence introduces a meaningful shift for U.S. employers and their foreign national workforce. While the policy aims to localize adjudication and improve the alignment of interview processing with applicants’ residence, it also brings potentially new complexities: logistical planning, documentation, scheduling delays, and costs. Employers sponsoring nonimmigrant visas should consider treating this as a new baseline for visa planning. Early coordination, intentional timeline buffers, logistical planning for potential travel burdens, and clear communication with employees may be helpful in minimizing disruptions and ensuring timely visa processing.

Why These Documents Matter for Employers

Until recently, U.S. employers faced some uncertainty about how the June 4, 2025, Presidential Proclamation restricting entry from 19 countries would be implemented. While the proclamation itself outlined broad restrictions and limited exceptions, it provided little detail about the practical processes, approval standards, or internal government priorities that would govern day-to-day visa adjudications. In late August 2025, Department of State (DOS) guidance cables were released providing employers with valuable insight into how these restrictions operate in practice. (See DOS Cables, “Demarche Points: Presidential Proclamation On Restricting,” June 8, 2025, AILA Doc. No. 25090200 (posted Sept. 2, 2025)). The cables provide specific procedural requirements for National Interest Exceptions (NIE), including exact approval authorities and workflow processes that were previously unknown. The guidance provides examples of what types of travel will and will not qualify for exceptions, along with DOS priorities and the “America First” framework guiding decisions. DOS also detailed processing instructions including refusal codes, annotation requirements, and documentation standards, while clarifying proclamation language through operational guidance. For employers, this guidance may eliminate guesswork about whether specific business needs qualify for exceptions and provides insight into the government’s interpretation of the proclamation’s terms.

Countries Affected

On June 4, 2025, President Donald Trump issued Presidential Proclamation 10949, which suspends the entry of nationals from 19 countries under Section 212(f) of the Immigration and Nationality Act (INA). The restrictions, which took effect on June 9, 2025, impose a full suspension of entry for nationals of 12 countries (Afghanistan, Burma, Chad, Republic of the Congo, Equatorial Guinea, Eritrea, Haiti, Iran, Libya, Somalia, Sudan, and Yemen) and a partial suspension for nationals of seven additional countries (Burundi, Cuba, Laos, Sierra Leone, Togo, Turkmenistan, and Venezuela). For the partial-suspension countries, visa categories widely used by employers, such as B-1/B-2 business visitors and F, M, and J student and exchange visitor visas, are blocked unless an exception applies. DOS confirms that the suspension applies only to foreign nationals who are outside the United States and do not hold a valid visa on the effective date. Importantly, no visas issued before June 9, 2025, were revoked because of the proclamation, providing some protection for employees currently holding valid documentation.

National Interest Exceptions (NIEs): Internal Guidance Reveals Limited Scope

DOS guidance provides details about NIE processing that was previously unknown. Specifically, DOS instructs consular officers that NIEs should be “used rarely” and the “relationship of travel to U.S. national interests should be exceptional in nature.” The guidance emphasizes a “significantly higher standard” than previous travel restrictions and directs officers to consider applications “from an America First perspective.” Most significantly for employers, the guidance states that “routine purposes of travel including visiting family members in the United States, routine business travel, employment, or study in the United States will typically not be considered to be advancing a U.S. national interest.”

The NIE Review Process

DOS also details the complete NIE workflow, which involves multiple layers of review and approval. An applicant must first qualify for the underlying visa and complete all standard processing before being refused under Section 212(f) using a specific refusal code. The interviewing consular officer must then prepare a detailed action memorandum that the chief of mission (COM) must personally approve and forward to Washington, D.C. Final approval requires sign-off from the assistant secretary for consular affairs or senior bureau official. If approved, the visa must be annotated with specific language: “NIE to PP on [date] Travel.” The guidance notes that, by requesting an NIE, “the COM is personally attesting that the visa applicant’s identity is not in question, and that the applicant does not represent a threat to U.S. national security or public safety.” This personal attestation requirement demonstrates the high level of scrutiny and oversight applied to NIE decisions.

Qualifying and Disqualifying Factors for NIEs

DOS provides specific examples that potentially qualify for NIE approval, including travel for or on behalf of the U.S. government, including training for U.S. government employees, and travel at the request of a U.S. government department for legitimate law enforcement, foreign policy, or national security purposes. International sports competitions at the professional level may qualify, as may business with international organizations designated under the International Organizations Immunities Act. Critical missions or Department priorities endorsed by a COM and urgent, nonroutine humanitarian medical treatment not possible outside the United States round out the categories that might receive approval.

The guidance, however, is explicit about what will definitively not qualify. DOS states that applicants traveling for education, work, or training in the United States, including continuing students or resuming employment, will not receive NIE approval. Travel that would cause financial hardship, personal hardship including emotional distress, educational hardship, or noncritical harm to an applicant’s health and well-being is also excluded. The guidance specifically notes that applicants traveling to help or aid U.S. citizen family members or for routine commercial or business purposes will not qualify. Finally, DOS clarifies that qualifying for a Priority Appointment Request “does NOT in and of itself indicate the applicant meets the bar for national interest necessary for an NIE,” eliminating another potential pathway that employers might have considered.

Other Exceptions: Protected Categories and Special Circumstances

DOS confirms several categories that do not require NIE approval, including lawful permanent residents of the United States, dual nationals traveling on passports from non-designated countries, and holders of various diplomatic visa classifications such as A-1, A-2, C-2, C-3, G-1, G-2, G-3, G-4, and NATO categories. DOS also provides details on the sports exception, clarifying that it applies only to athletes, coaches, persons performing a necessary support role, and immediate relatives. The guidance explicitly states that accredited media and commercial partners do not benefit from this exception, despite their involvement in major sporting events.

Iranian Religious and Ethnic Minorities

For Iranian nationals specifically, the cables identify particular groups who qualify for the Iranian minority exception. These include Ahwazi Arabs, Azerbaijani Turks, Baha’i, Balouch, Christians, Jews, Kurds, Sabean-Mandaeans, Sufi Muslims, Sunni Muslims, Yarsans, and Zoroastrians. The guidance notes that ‘it is not necessary that an applicant have experienced individualized persecution,’ broadening the potential applicability of this exception beyond those with direct persecution experience.

Potential Implications for U.S. Employers

DOS makes clear that virtually all employment-related travel is excluded from NIE consideration. This includes not just new hires, but “continuing students or resuming employment,” meaning existing employees or students may not qualify based on their employment or educational status. This represents a shift from previous travel restrictions that frequently permitted business-critical personnel through exception processes. The guidance’s explicit exclusion of “routine commercial or business purposes” eliminates some business travel justifications that employers previously relied on. The exceptions for U.S. government business or international organizations will apply to few private-sector needs, leaving some employers without viable pathways for business-critical travel from the affected countries. Employees from affected countries who hold valid visas issued before June 9, 2025, may continue to travel, but the guidance makes clear that obtaining replacement visas may be difficult.

What the Cables Tell Us

DOS’ guidance provides employers with clarity about government priorities and processes in this area. While the NIE pathway requires meeting specific criteria and involves thorough review procedures, understanding these requirements enables employers to make informed decisions about international mobility strategies. The structured review process, with its 90-day and 180-day assessment intervals, provides a framework for potential policy adjustments as countries work to address identified security and vetting concerns. Armed with this guidance, employers may wish to develop more targeted approaches to workforce planning and international operations.