Search results for: public charge

USCIS has proposed rules that could deny entry to non-immigrants seeking admission to the United States and adjustment of status to permanent residence to immigrants if they rely on public benefits for food, housing or medical care, and other forms of public assistance. The proposed rule – “Inadmissibility on Public Charge Grounds” – is published in the Federal Register. The public may comment on the proposed rule during the 60-day comment period ending on Dec. 10, 2018. USCIS will review comments to the proposed rule and then revise and issue a final public charge rule that will include an effective date. In the interim, and until a final rule is in effect, USCIS will continue to apply the current public charge policy.

Pursuant to Section 212(a)(4) of the Immigration and Nationality Act (INA), an individual seeking admission to the United States or seeking to adjust status to permanent resident (obtaining a green card) is inadmissible if the individual “at the time of application for admission or adjustment of status, is likely at any time to become a public charge.”

Under 8 U.S.C. § 1601 (PDF)(1), “Self-sufficiency has been a basic principle of United States immigration law since this country’s earliest immigration statutes.”

Further under 8 U.S.C. § 1601 (PDF)(2)(A), “It continues to be the immigration policy of the United States that aliens within the Nation’s borders not depend on public resources to meet their needs, but rather rely on their own capabilities and the resources of their families, their sponsors, and private organizations.”

While self-sufficiency has been the guiding principle of U.S. immigration law, as indicated in the above federal regulations, “public charge” has not been defined in statute or regulations. According to USCIS, there has been insufficient guidance on how to determine if an alien who is applying for a visa, admission, or adjustment of status is likely at any time to become a public charge. In determining inadmissibility USCIS has used the definition of “public charge” as an individual who is likely to become “primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense.” (See, “Field Guidance on Deportability and Inadmissibility on Public Charge Grounds,” 64 FR 28689 (May 26, 1999). In determining whether an alien meets this definition for public charge inadmissibility, USCIS considers several factors, including age, health, family status, assets, resources, financial status, education, and skills. No single factor will determine whether an individual is a public charge.

The proposed rule will apply to foreign nationals seeking admission to the United States on non-immigrant and immigrant visas, as well as those non-immigrants who have availed themselves of public benefits within the United States and are seeking to seeking to either extend their stay or change their status. Under the proposed rule, USCIS would only consider the direct receipt of benefits by the individual alien applicant. Receipt of benefits by dependents and other household members would not be considered in determining whether the alien applicant is likely to become a public charge.

Factors that would generally weigh heavily in favor of a finding that an individual is likely to become a public charge include the following:

  • The individual is not a full-time student and is authorized to work, but cannot demonstrate current employment, has no employment history, or no reasonable prospect of future employment;
  • The individual is currently receiving or is currently certified or approved to receive one or more of the designated public benefits above the threshold;
  • The individual has received one or more of the designated public benefits above the threshold within the 36 months immediately preceding the alien’s application for a visa, admission, or adjustment of status;
  • The individual has been diagnosed with a medical condition that is likely to require extensive medical treatment or institutionalization or that will interfere with the alien’s ability to support himself or herself, attend school, or work, and the alien is uninsured and has no prospect of obtaining private health insurance; or
  • The individual has previously been found inadmissible or deportable based on public charge.

Alternately, factors that would weigh strongly against a finding that a foreign national is likely to become a public charge include:

  • The individual has financial assets, resources, and support of at least 250 percent of the Federal Poverty Guidelines for a household of the alien’s household size; or
  • The individual is authorized to work and is currently employed with an annual income of at least 250 percent of the Federal Poverty Guidelines for a household of the alien’s household size.

This proposed rule could have wide-reaching effects on legal immigration to the United States. The rule proposes not only to define “public charge” and the factors to be considered in making current and prospective public charge determinations, but also to add requirements for “public charge bonds” for certain applicants who are more likely to become a public charge. It is important for interested parties to comment on this proposed rule by the Dec. 10, 2018 deadline.

On Aug. 21, 2026, the U.S. District Court for the Southern District of New York issued a decision in Catholic Legal Immigration Network (CLINIC), et al. v. Rubio, striking down a Department of State policy that suspended immigrant visa issuance to nationals of 75 countries based on generalized public charge concerns and vacated the policy.

Background

In January 2026, the Department of State announced a policy directing U.S. consular officers to refuse immigrant visas to nationals of 75 designated countries. The policy was based on concerns that individuals from those countries were more likely to rely on public benefits in the United States. As a result, applicants could be denied immigrant visas regardless of their personal circumstances or whether they were otherwise eligible for visa issuance.

Countries Affected by the Immigrant Visa Ban

The ban applied to nationals of the following 75 countries: Afghanistan, Albania, Algeria, Antigua and Barbuda, Armenia, Azerbaijan, Bahamas, Bangladesh, Barbados, Belarus, Belize, Bhutan, Bosnia and Herzegovina, Brazil, Burma, Cambodia, Cameroon, Cape Verde, Colombia, Cote d’Ivoire, Cuba, Republic of the Congo (Congo-Brazzaville), Democratic Republic of the Congo (Congo-Kinshasa), Dominica, Egypt, Eritrea, Ethiopia, Fiji, The Gambia, Georgia, Ghana, Grenada, Guatemala, Guinea, Haiti, Iran, Iraq, Jamaica, Jordan, Kazakhstan, Kosovo, Kuwait, Kyrgyzstan, Laos, Lebanon, Liberia, Libya, Moldova, Mongolia, Montenegro, Morocco, Nepal, Nicaragua, Nigeria, North Macedonia, Pakistan, Russia, Rwanda, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Senegal, Sierra Leone, Somalia, South Sudan, Sudan, Syria, Tanzania, Thailand, Togo, Tunisia, Uganda, Uruguay, Uzbekistan, and Yemen. 

The policy was based on an individual’s nationality rather than their country of residence. As a result, a citizen of one of the listed countries might be subject to the ban even if they reside permanently in another country or apply for a visa from a third country.

The Court’s Decision and Its Impact on Applicants

The court found that the policy was inconsistent with U.S. immigration law because it exceeded the secretary of state’s statutory and regulatory authority, and imposed a blanket nationality-based restriction rather than requiring the individualized review of each applicant’s eligibility. The court held that visa applicants must be assessed on a case-by-case basis and that the Department of State exceeded its authority by categorically denying visas based solely on nationality. Accordingly, the court vacated the policy and directed the Department of State to restore individualized processing of visa applications.

This decision reaffirms that immigrant visa applications must be evaluated based on each applicant’s individual circumstances rather than broad assumptions tied to nationality. However, the ruling does not eliminate public charge screening or other visa eligibility requirements, and applicants must still satisfy all applicable requirements for immigrant visa issuance.

The government may appeal the decision.

Key Takeaways and Practical Considerations for Immigrants and Petitioners

  1. Applicants whose immigrant visa cases were affected by this policy might consider consulting with immigration counsel to determine whether the court’s decision may impact their cases or provide a basis for further action.
  2. Applicants may wish to continue preparing for consular processing, confirming that all required civil documents, police certificates, and financial records are up to date, complete, and readily available for review.
  3. The court’s decision does not eliminate public charge screening. Rather, it requires that applicants be assessed on an individual basis under existing immigration laws. Applicants should continue maintaining evidence of their financial stability, income, assets, and other means of support.
  4. The ruling does not guarantee visa issuance. Applicants must continue to meet all requirements for their immigrant visa category and successfully complete the consular process. The decision reinforces that visa eligibility must be determined on a case-by-case basis, not through broad nationality-based restrictions.
  5. Stay informed about further developments as the government may appeal the decision, and future litigation might affect visa processing procedures.

On Jan. 14, 2026, the U.S. Department of State announced an indefinite halt on immigrant visa processing for applicants from 75 countries while it reassesses vetting procedures tied to the public charge ground of inadmissibility – whether a green card applicant is likely to become dependent on long-term government benefits. The department instructed consular officers to refuse immigrant visas under INA Section 221(g) for covered nationalities, even when interviews proceed and no other grounds of ineligibility are found. More than six months after announcing the policy, the department has not introduced any new public charge vetting tools, policies, or operations for immigrant visa applicants.

What Did the D.C. District Court Rule?

Following the State Department’s announcement, multiple lawsuits were filed, including by individual visa applicants whose green card processing was halted based on their nationality. One of these lawsuits, De Moura Gomes v. Rubio, was brought by a Brazilian entrepreneur, who in 2018 invested $500,000 in an Arizona hotel project through the EB-5 immigrant investor program. His EB-5 petition was approved, making him eligible to apply for a green card through consular processing in Brazil, along with his wife and two daughters. Plaintiff’s case had already been filed and his interview scheduled when the pause went into effect. He had also been diagnosed with advanced, incurable cancer during the six years since his qualifying investment.

On July 31, 2026, the U.S. District Court for the District of Columbia ruled in De Moura Gomes v. Rubio that the State Department’s visa freeze (Public Charge Policy) was unlawful and ordered re‑adjudication of the plaintiff’s immigrant visa application within a set timeframe. The court did not direct any particular outcome, meaning a consular officer may request additional evidence or refuse the case on a lawful, individualized basis. Importantly, the ruling did not vacate the policy nationwide. Relief was limited to the individual plaintiff and his derivative family members.

The Court’s Reasoning

  1. Limits on agency authority under the INA: INA Section 104(a), codified at 8 U.S.C. Section 1104(a), expressly withholds from the secretary of state the powers and functions assigned to consular officers relating to the granting or refusal of visas. A policy requiring consular officers to refuse applicants, regardless of individual circumstances, strips them of this discretion and is contrary to the INA.
  2. Court’s analysis of the public charge policy: INA Section 212(a)(4) makes an applicant inadmissible when, in the opinion of the consular officer, the person is likely at any time to become dependent on government benefits and thus be a “public charge.” The statute lists factors that, “at a minimum” the consular officer shall consider, including the applicant’s age, health, family status, assets, resources, financial status, education, and skills. The blanket Public Charge Policy nullifies this discretionary authority and is contrary to the INA.
  3. Final agency action: The court found the secretary’s directive to refuse immigrant visas for nationals of 75 countries to be a final, binding policy with concrete legal consequences, not mere guidance.
  4. Consular nonreviewability does not bar review of a policy: The court explained that it may review forward‑looking challenges to the legality of State Department policies governing consular decisions.
  5. Unlawfully withheld action: Applying TRAC factors, the court held the agency had unlawfully withheld adjudication in the plaintiffs’ case, particularly given the policy’s indefinite suspension and the serious stakes identified in the record.

Potential Implications of the Decision

Although the decision is narrow and provides direct relief only to the plaintiff and his family, the court’s conclusion that the underlying Public Charge Policy is unlawful may strengthen the legal position of others seeking to challenge the processing freeze in court.

The Broader Litigation Landscape: APA and DS‑260 Themes

Separate federal litigation filed Feb. 2, 2026, also challenges the immigrant visa pause, alleging that the State Department altered its public charge adjudication standards without the notice‑and‑comment rulemaking required by the Administrative Procedure Act.

Public Charge Scrutiny Is Still Expanding

This ruling is narrow and does not end the freeze for all applicants. It also does not affect the Department of Homeland Security’s separate July 2026 final rule expanding the public charge framework for adjustment of status cases. That rule, effective Sept. 15, rescinds the 2022 Biden-era public charge regulations at 8 CFR Sections 212.20-212.23 and revises the public-charge-bond provisions at 8 C.F.R. Section 103.6(c).

Whether applying for a green card through adjustment of status inside the United States, or applying for an immigrant visa abroad, applicants should expect significant scrutiny of their financial, health, age, education, skills, insurance, and other circumstances.

Key Considerations for Employers and Applicants

  1. The D.C. court’s decision finds the blanket refusal policy inconsistent with the INA and requires individualized review in the plaintiff’s case, signaling a potential framework for other courts reviewing the same policy.
  2. Relief remains case‑specific; employers and applicants may not see an immediate resumption of immigrant visa processing as a result of this decision.
  3. Monitor agency updates and litigation developments, and preserve evidence of Section 221(g) refusals and individual harm tied to the pause, where applicable.
  4. Maintain current public charge‑related documentation for when adjudications resume, including current proof of income and assets, updated employment and tax records, proof of insurance, education credentials, and any evidence addressing age or health concerns.
    The separate federal lawsuit’s APA and DS‑260 arguments raise questions regarding the procedures used to implement changes to public charge adjudications.

Applicants from paused countries may wish to continue monitoring case status, attending scheduled interviews, and preparing for public charge scrutiny. Applicants, agents, and sponsoring employers may wish to consult counsel regarding potential litigation strategies where prolonged Section 221(g) refusals cite the public charge pause.

On Feb. 2, 2026, a coalition of immigrant advocacy groups and individual plaintiffs filed a federal lawsuit challenging the State Department’s freeze on immigrant visa processing for nationals of 75 countries (the Immigrant Visa Pause). The complaint also contests newly implemented consular directives that reportedly expand the application of the public charge ground of inadmissibility.

At its core, the case raises two distinct issues: (1) whether the State Department may halt immigrant visa processing based on nationality in light of the Immigration and Nationality Act’s nondiscrimination provision (8 U.S.C. § 1152(a)(1)(A)); and (2) whether the agency meaningfully altered public charge adjudications without formally revising its regulations, forms, or procedures.

Administrative Procedure Act Challenges to Immigrant Visa Processing Changes

Much of the litigation centers on procedure. Plaintiffs argue that State Department internal cables instructed consular officers to refuse visas or pause adjudications without notice-and-comment rulemaking or public guidance explaining the legal basis for the Immigrant Visa Pause. The complaint frames this as a violation of the Administrative Procedure Act (APA), particularly given the departure from longstanding adjudicatory practice.

The lawsuit also challenges the State Department’s action to change public charge adjudications without notice and comment rulemaking, either through new regulations or through the introduction of a form. For example, the State Department may have elected to proceed using formal processes, including:

  • Formally revised the regulatory definition of public charge through notice-and-comment rulemaking;
  • Issued updated Foreign Affairs Manual (FAM) guidance with detailed adjudicatory standards; or
  • Revised the DS-260 immigrant visa application to clearly identify the specific public charge questions and evidentiary requirements being assessed.

DS-260 Immigrant Visa Application Form: Procedural Requirements and Public Charge Determinations

The DS-260 is the foundational immigrant visa application. It structures the information that consular officers review and shapes applicant expectations. If public charge considerations were to be expanded or reframed, revising the DS-260 first might have:

  • Put applicants on notice of the precise financial and benefits-related information required;
  • Reduced inconsistencies between posts;
  • Minimized the appearance of discretionary or ad hoc decision-making; and
  • Strengthened the government’s defense against APA claims by demonstrating a deliberate, transparent policy shift.

Administrative law principles often turn on whether affected parties had clear notice of new standards. Updating the form before implementing the policy may have created a clearer record that the agency intended a structured change, rather than an informal one.

A more transparent implementation, including revised forms, published guidance, and articulated standards, might have fortified the government’s position.

Legal Implications of State Department Visa Processing Policies: Executive Authority and Procedural Compliance

The case may ultimately turn less on whether the executive branch can consider public charge factors, which it may be able to under the statute, and more on how it chose to implement that authority.

If the court characterizes the Immigrant Visa Pause and related public charge measures as a substantive overhaul introduced without the necessary administrative and procedural steps, plaintiffs may gain traction. If, however, the court views the measures as an ordinary exercise of delegated discretion, deference could prevail.

Either way, the litigation underscores a recurring theme in immigration policymaking: substance and process are inseparable. Even when the executive branch has statutory authority to act, the durability of immigration policy often depends on whether it is introduced in a way that is structured, transparent, and procedurally sound.

Greenberg Traurig Global Immigration & Compliance Practice Co-Chair Kate Kalymkov and Of Counsel Michael Eisenstadt will present a webinar on Thursday, October 8 from 2:00 – 3:30 p.m. examining the evolving discretionary review of adjustment- of status applications. The program will explore the historical development of this discretionary framework, recent policy challenges and the potential for heightened scrutiny of employment-based and EB-5 cases, as well as the renewed focus on public charge grounds of inadmissibility.

Click here to register.

Following two federal court decisions issued one week apart, the U.S. Department of State has updated its public guidance on immigrant visa issuance for nationals of certain designated countries and Diversity Visa (DV) processing.

On Aug. 21, 2026, the U.S. District Court for the Southern District vacated DOS’s January 2026 categorical pause on immigrant visa issuance for nationals of 75 countries. DOS later confirmed that the pause is no longer in effect as of that date. On Aug. 28, 2026, the U.S. District Court for the Northern District of California issued an order in Medani v. Trump concerning DV-2026 processing, after which DOS confirmed that the December 2025 pause on diversity visa issuance is likewise no longer in effect.

Together, the decisions may benefit certain 2026 immigrant visa applicants and DV-2026 selectees, but they do not guarantee adjudication, visa issuance, adjustment approval, or admission to the United States.

DOS Ends Categorical Immigrant Visa Pause for Nationals of 75 Countries

DOS has confirmed that its January 2026 categorical pause on immigrant visa issuance for nationals of 75 designated countries is no longer in effect. As a result, affected immigrant visa cases may again proceed through ordinary case-specific adjudication. Under the suspended policy, consular officers could continue accepting applications, conducting interviews for applicants, and reviewing eligibility, but could not issue immigrant visas to affected nationals based solely on the categorical pause, even when applicants were otherwise approvable. The court concluded that the policy was unlawful, vacated it, and set aside visa refusals issued solely on that basis. However, the end of the issuance pause does not mean a green card or immigrant visa has been approved.

As a result, affected immigrant visa applications may again be adjudicated on an individualized basis under ordinary case-specific adjudication existing statutory standards. The end of the categorical pause does not require immediate issuance. Applicants may still be subject to public charge review, other inadmissibility grounds, delayed by administrative processing, security screening checks, document requests, visa-number limits, or post-specific capacity operational constraints, available visa number, complete required medical examinations and document processing, present a valid passport, and clear any separate country-specific restrictions or presidential proclamations that may apply required checks.

Federal Court Order Changes DV-2026 Processing Landscape

DOS has likewise updated its public guidance regarding DV-2026 processing. The agency now states that the December 2025 pause on diversity visa issuance is no longer in effect, allowing certain DV-2026 immigrant visa and adjustment-of-status cases to proceed through ordinary adjudication. DOS subsequently updated its public guidance to state that the December 2025 pause on diversity visa issuance is no longer in effect. Applicants should note that DV numbers may become unavailable before Sept. 30 if the annual allocation is exhausted. DV benefits cannot be extended or rolled over to the next fiscal year.

Timing Remains Critical: Practical Steps for DV-2026 Selectees

DV-2026 selectees may wish to act promptly. Diversity visa eligibility for DV-2026 expires Sept. 30, 2026, and visa availability remains subject to annual, regional, and per-country numerical limits. Selection in the diversity visa lottery does not reserve a visa number or guarantee that a visa will be issued or that adjustment of status will be approved before the fiscal-year deadline.

Applicants whose cases were refused or delayed only because of the DV issuance pause may wish to contact the appropriate U.S. embassy or consulate, or the Kentucky Consular Center, as applicable, to ask about next steps. Applicants inside the United States with pending Form I-485 applications should not assume that DOS guidance concerning consular visa issuance automatically resolves their adjustment case; they should continue monitoring USCIS guidance and case-specific notices.

Practical Steps for Applicants and Employers

Although DOS has ended the categorical immigrant visa pause and the December 2025 DV issuance pause, affected applicants should not assume that visa issuance will occur immediately. Consular posts may require additional time to implement the court decisions, review previously refused or delayed cases, and resume case-specific adjudication.

Individuals whose applications were refused or delayed solely because of either policy should preserve copies of prior refusal notices, appointment notices, and correspondence. Where there has been no recent case activity, they may consider submitting a status inquiry to the applicable U.S. embassy or consulate, the National Visa Center, the Kentucky Consular Center, or USCIS, depending on case type and procedural posture.

Employers with foreign nationals completing immigrant visa processing abroad should monitor case status, particularly where onboarding, relocation, travel, or workforce planning depends on visa issuance. Family-based applicants and petitioners should likewise remain attentive to post-specific processing developments. Applicants should check the applicable embassy or consulate website, the Consular Electronic Application Center, and the Entrant Status Check for DV cases, and monitor notices from DOS or USCIS.

Looking Ahead

Implementation may vary among consular posts and agencies. Applicants should evaluate their individual case posture before acting, particularly where separate restrictions, unresolved admissibility issues, expired documents, or pending administrative processing may apply.

Foreign nationals, employers, and family-based petitioners should continue monitoring DOS and USCIS guidance and consult immigration counsel regarding the potential impact on pending or future cases. This discussion reflects publicly available information as of Sept. 9, 2026; agency guidance, court orders, and implementation practices may change.

On May 21, 2026, USCIS issued Policy Memorandum PM-602-0199, outlining a change to the adjustment of status (AOS) process under Form I-485. The Policy Memorandum (PM) states that applicants for permanent residence should generally process for immigrant visas at U.S. embassies and consulates abroad following immigrant petition approval, except in limited circumstances. The PM reframes AOS as an “extraordinary discretionary benefit.”

AOS is the procedure for applying for permanent residence, commonly referred to as a “green card,” while physically in the United States. It is used by applicants who are in the U.S. and relies on a statutory framework outlining AOS eligibility criteria and the administrative process for adjudicating applications. For those outside the U.S., applicants for permanent residence go through a similar process at a U.S. embassy or consulate abroad, known as “consular processing.” The PM states that AOS is not an entitlement but a discretionary form of “administrative grace,” even where statutory eligibility is met. The PM characterizes AOS as an “extraordinary” remedy that allows applicants to “bypass” the immigrant visa process through consular processing, which the memo describes as the “normal” procedure that “the Congress generally expects aliens to follow.” The PM instructs officers to apply a case-by-case discretionary analysis, weighing positive and negative factors, including immigration violations, failure to maintain status, and failure to depart, as part of a totality of the circumstances assessment.

Who Does This Impact

The PM applies to all AOS applicants, including individuals with:

(1) pending or approved family-based immigrant petitions (Form I-130);
(2) pending or approved employment-based immigrant petitions (Form I-140); and
(3) pending or approved immigrant investor petitions (Form I-526/Form I-526E).

What Is New

The PM reframes AOS as secondary to consular processing. It characterizes AOS as an “extraordinary” form of relief, describes it as an exception that allows applicants to avoid consular processing and states that AOS should be granted sparingly.

What Is Important

The PM directs USCIS officers to evaluate whether an applicant should be granted AOS based on overall equities, including immigration compliance, moral character, family ties to the U.S., and conduct after admission as a nonimmigrant. Officers are instructed to conduct a totality of the circumstances analysis weighing positive against negative factors. The PM also confirms that discretionary denials must articulate why negative factors outweigh positive ones.

The PM elevates certain adverse factors, instructing officers to treat the following as “highly relevant”:

  • Failure to maintain nonimmigrant status;
  • Failure to depart after admission or parole;
  • Conduct inconsistent with the purpose of admission; or
  • Immigration violations or fraud.

The PM states that maintaining lawful nonimmigrant status in dual-intent categories (such as H-1B or L-1) does not automatically guarantee AOS approval; officers are still instructed to apply the totality of the circumstances test using the discretionary factors listed in the PM.

The current Administration has indefinitely suspended the issuance of immigrant visas via consular processing to nationals of 75 countries citing public charge concerns. Notably, the AOS process already includes public charge-related questions, while consular processing currently does not. A finding that an applicant does not warrant the “extraordinary measure” of AOS, combined with the immigrant visa suspension affecting nationals of those 75 countries, could leave a significant number of applicants unable to pursue permanent residence through either pathway. Such a broad suspension of immigrant visas raises questions regarding Congressional intent, given that Congress has statutorily authorized the issuance of 480,000 family-based green cards and 140,000 employment-based each year.

The U.S. embassies and consulates worldwide are also facing capacity constraints following staff reductions, and applicants pursuing consular processing may encounter lengthy wait times for immigrant visas. Applicants with unlawful presence or status violations may trigger a three- or 10-year bar to reentry if they travel abroad and may wish to carefully consider whether to depart and the potential impact on subsequent immigrant visa processing.

Impact on Pending AOS Applications

The PM does not address whether it applies to already pending or newly filed AOS applications. There is no stated effective date, and no specific changes have been made to the USCIS Policy Manual. Because USCIS may seek to apply the PM to pending applications, applicants may consider gathering evidence of positive discretionary factors, including U.S. employment, absence of immigration violations, family and community ties in the U.S., and U.S. investments (particularly for EB-5 investors). USCIS may issue Requests for Evidence (RFEs) seeking documentation to support the totality of the circumstances determination.

Impact on Travel and Work Authorization for AOS Applicants

The PM does not specifically address travel on an advance parole document (AP) or working pursuant to an employment authorization document (EAD) issued while an AOS applicant is pending with USCIS. However, applicants who use AP to travel internationally should be aware that if USCIS seeks to deny the AOS while they are abroad under this guidance, the applicant may face obstacles reentering the U.S. Travel on AP carries additional considerations considering the PM’s publication.

Travel on AP may also disrupt certain types of underlying nonimmigrant status, including B, E, F, J, H-1B1, and O status. Applicants may wish to remain in the U.S. and forego international travel on AP to preserve underlying nonimmigrant status where possible.

What’s Unclear

The PM is subject to a range of interpretations, and its practical application to specific nonimmigrant classifications, including long-term work-authorized categories (dual intent or otherwise), is presently unclear. The PM states that the current statutory framework and the validity of precedent appellate decisions remain unchanged; however, a number of the court decisions cited in the PM are dated or were decided in other contexts, such as removal proceedings and are not directly relevant to AOS applications.

Potential Court Challenges

The PM directs adjudicators to treat AOS as an extraordinary measure secondary to consular processing requiring a showing of “unusual or outstanding circumstances,” which represents a shift in agency practice. Both the statutory interpretation and the reading of case law cited in the PM may become subject to litigation, depending on how the agency’s adjudication practices change.

The AOS statute includes certain exceptions permitting individuals to apply for permanent residence even where they may have violated status, overstayed a visa, or worked without authorization. For example, an immediate relative (such as a spouse or parent of a U.S. citizen) may still apply for AOS without having maintained status or where unauthorized employment occurred. Similarly, the statute provides an exception for certain employment-based applicants who have had a period of unauthorized stay or unauthorized employment of fewer than 180 days. Some of the “negative” factors listed in the PM, including failure to maintain nonimmigrant status and failure to depart after admission or parole, appear to conflict with these statutory exceptions and could form the basis for legal challenge.

Congress has expressly passed the AOS statute permitting these applications. USCIS administers the AOS applications. U.S. federal courts interpret whether policies by USCIS, such as the PM, conflict with Congressional intent or the language of the statute passed by Congress. Litigation in the federal courts may focus on claims under the Administrative Procedure Act (APA), including that the PM constitutes a rulemaking disguised as policy guidance (which would require public notice and comment procedures) and/or that the PM is not in accordance with the law (e.g. the “negative factors” listed in the PM conflict with statutory exceptions that still permit AOS approval).

From a policy standpoint, family reunification has been a longstanding principal of U.S. immigration law. Litigation may also focus on the PM’s expressed limitation of AOS as inconsistent with the statutory framework allowing AOS applications for family reunification, including in cases where an applicant violated status or accrued unlawful presence. For EB-5 applicants, Congress passed the EB-5 Reform and Integrity Act of 2022 (RIA), which explicitly permits the concurrent filing of AOS applications. There may be potential litigation challenges asserting that the PM conflicts with the plain text and Congressional intent of the RIA.

Any forthcoming litigation will likely seek a temporary restraining order (TRO), which could pause the PM from taking effect and being applied to pending cases.

Practical Considerations

  1. Applicants may document positive discretionary factors in newly filed AOS applications, including family ties in the U.S., lawful employment, community involvement, and tax compliance.
  2. Applicants should maintain their underlying nonimmigrant status where possible and may wish to forego international travel on AP.
  3. Applicants with an approved immigrant petition (Form I-130, Form I-140 or Form I526/I-526E) may wish to file Form I-824 with USCIS to initiate an immigrant visa case with the National Visa Center, which may be used in the event of a subsequent AOS denial.
  4. USCIS may issue additional guidance or clarification on the PM. The PM states that USCIS may issue further guidance on certain AOS categories or discrete populations to aid officers in identifying which applications may or may not be affected. USCIS may also clarify its policy positions following further review of the impact on applicants.

The PM may result in increased difficulty in obtaining a green card through the AOS process, particularly for applicants with prior immigration violations or those holding purely nonimmigrant intent visa categories (B-1/B-2, E-1/E-2/E-3, F-1, J-1, TN, H-1B1, and O-1). While the PM signals potential changes to the AOS process, the underlying statute remains unchanged and the PM may be subject to court challenge.

The U.S. State Department has announced a temporary halt on immigrant visa processing for applicants from 75 countries, effective Jan. 21, 2026. This pause comes as the department reassesses its vetting procedures under existing immigration law, specifically focusing on the public charge rule — a determination of whether an applicant is likely to require long-term financial or healthcare support from the U.S. government.

Who Does This Impact?

The full list of 75 countries comprises Afghanistan, Albania, Algeria, Antigua and Barbuda, Armenia, Azerbaijan, Bahamas, Bangladesh, Barbados, Belarus, Belize, Bhutan, Bosnia, Brazil, Burma, Cambodia, Cameroon, Cape Verde, Colombia, Cote d’Ivoire, Cuba, Democratic Republic of the Congo, Dominica, Egypt, Eritrea, Ethiopia, Fiji, Gambia, Georgia, Ghana, Grenada, Guatemala, Guinea, Haiti, Iran, Iraq, Jamaica, Jordan, Kazakhstan, Kosovo, Kuwait, Kyrgyzstan, Laos, Lebanon, Liberia, Libya, Macedonia, Moldova, Mongolia, Montenegro, Morocco, Nepal, Nicaragua, Nigeria, Pakistan, Republic of the Congo, Russia, Rwanda, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Senegal, Sierra Leone, Somalia, South Sudan, Sudan, Syria, Tanzania, Thailand, Togo, Tunisia, Uganda, Uruguay, Uzbekistan, and Yemen.

Why the Pause?

The directive aims to prevent the entry of foreign nationals deemed likely to rely on U.S. welfare or public benefits. This move follows increased scrutiny of public charge rules and broader immigration policy changes under the current administration.

Key Points for Applicants and Employers

  • The government will pause visa decisions starting Jan. 21, 2026.
  • Applicants from affected countries may be able to expect delays and should consider alternative strategies.
  • Employers relying on foreign talent may need to adjust timelines and explore contingency plans.

What Happens Next?

The State Department may release more details soon. For now, applicants and businesses should stay informed and may wish to consult with immigration counsel to navigate this evolving situation.

Immediately after assuming office on Jan. 20, 2025, President Donald Trump began issuing numerous executive orders. While they may not immediately impact business immigration, many of them presage changes in the business immigration landscape. The following is an analysis of several of these executive orders from that perspective:

  • Protecting the United States from Foreign Terrorists and Other National Security and Public Safety Threats. This executive order largely reiterates Trump’s Proclamation 9645, Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats, an executive order from his previous term. It tasks various government agencies with reviewing all visa programs to prevent foreign nation-states or other hostile actors from hurting the United States. This order will most likely result in an increase in scrutiny of visa applications and an increase in processing times across the board for all business immigration. We can expect an increase in the number of visa applications subject to administrative processing. These effects may discourage business immigration as business realities clash with system slowdowns.
  • America First Trade Policy. This executive order largely reiterates Trump’s Executive Order 13788, Buy American and Hire American (BAHA), from his previous term. The U.S. Trade Representative has been directed to review the implementation of trade agreements to ensure they favor domestic workers and manufacturers, consistent with the principles of that prior executive order. This may lead to a tightening of the labor market, as companies could be discouraged from hiring available foreign national candidates for positions. This could lead to an immigrant brain-drain as highly skilled immigrants trained at U.S. universities and institutions potentially immigrate to countries such as Canada. The USTR’s review may also affect treaty-based visas, such as the TN, E-1, E-2, and H-1B1 visas. Trump also issued America First Policy Directive to the Secretary of State, which may result in increased scrutiny of employment-based visa applications, as BAHA did under Trump’s previous term.
  • Guaranteeing the States Protection Against Invasion. This executive order characterizes migration at the southern border as an “invasion” and imposes vetting requirements on those immigrating to the United States. The likely impact is to create enhanced medical and security requirements for immigrants entering the U.S. While this executive order is drafted with the southern border in focus, Customs and Border Protection and the Department of Homeland Security will likely impose additional restrictions on business immigration as well, potentially creating travel disruptions due to inconsistent experiences at points of entry.
  • Designating Cartels and Other Organizations as Foreign Terrorist Organizations and Specially Designated Global Terrorists. The designation of criminal organizations in the United States and Central America may portend a crackdown on and enhanced vetting of immigrants, including business immigrants, from areas where these organizations operate. This could cause slowdowns in business immigration across the southern border with Mexico.
  • Protecting the American People Against Invasion. This executive order expands expedited removal and revokes humanitarian parole programs created by the prior administration. Individuals who have secured status under those programs will be unable to renew work permits. It may also result in the return of “public charge” policies, which previously resulted in a slowdown for business immigrants seeking lawful permanent residency status. Furthermore, increased scrutiny and interior enforcement may lead businesses to forego hiring immigrant workers.
  • Protecting the Meaning and Value of American Citizenship. This executive order seeks to re-interpret the Constitution’s guarantee of citizenship for those born within the United States territory and who are subject to the jurisdiction of the United States. Notably, this executive order attempts to remove the grant of citizenship to certain business immigrants’ children born in the United States. Lawsuits have been filed challenging the impact of this executive order. This action may lead to increased difficulties for companies in recruiting and retaining foreign workers.

Conclusion

While these orders do not have an immediate impact on business immigration, they will likely cause an increase in administrative costs for companies with foreign workers and create retention challenges for companies. This may lead to an immigrant brain-drain, as highly skilled professionals, some of whom have been trained and educated in the United States, potentially seek to leave the country.

FOR THE WEEK OF DEC. 6, 2022

Legislative Update

  • On the Omnibus front, Sens. Thom Tillis and Kyrsten Sinema have leaked a potential DACA/Border fix. It looks like the time to complete this and the Omnibus spending bill will push the deadline from Dec. 16 to Dec. 23. 
  • This immigration provision addition is an uphill battle. It will need 10 Republicans in the Senate and at this writing there are fewer than that. There is also a chance that the Omnibus spending bill gets pushed into the next Congress.
  • The DACA/Border fix includes:
    • border security provisions such as increased funding for border patrol agents, customs officers, border infrastructure, and technology; enhanced consequence delivery to ensure that those who do not qualify for asylum or other forms of relief will be removed quickly; increased funding to processing and to build processing centers for those seeking asylum, to ensure a controlled, orderly, fair, and timely process.
    • a path to permanent residence for Dreamers

Travel Reminder – U.S. still requires foreign travelers to provide proof of COVID-19 vaccination

  • All foreign national visitors and workers traveling to the U.S. must still present proof of being fully vaccinated for COVID-19
  • The U.S. accepts only certain types of vaccines; boosters are not required
  • Exceptions to this requirement include children under 18 years old, as well as other narrowly-defined groups
  • S. lawful permanent residents (green card holders) are not subject to the vaccine requirement

TPS for Haiti Extended and Redesignated

  • The Department of Homeland Security extended TPS for Haitians from Feb. 4, 2023 through Aug. 3, 2024.
  • The Department also redesignated TPS for Haiti, which means Haitian nationals living in the U.S. as of Nov. 6, 2022 are eligible to apply for TPS

USCIS confirms ESTA visitors may request emergency extensions

  • On its USCIS Response to COVID-19 site, USCIS explains it has discretion to grant an extension of up to 30 days if an emergency (such as COVID-19, but not limited to COVID-19) prevents an ESTA visitor from departing
  • For additional 30-day extensions, the reason for the request must be related to COVID-19
  • USCIS has confirmed that ESTA visitors may request multiple 30-day extensions through the USCIS Contact Center.

FOR THE WEEK OF DEC. 12, 2022

Legislative Update

  • Eagle Act
    • The House is considering the Eagle Act, another bill that would consider eliminating per country quotas in the immigrant visa system. Plans to vote in the House were scrapped last week, and it’s uncertain as to whether this legislation will pass or fail to have the votes necessary in the House.
    • The Senate is unclear. There doesn’t appear to be an appetite for a standalone immigration bill, although there may be an attempt to pass this by Unanimous Consent. Some prominent groups have opposed the legislation for not going far enough to fix the backlogged immigrant visa system.
  • Negotiations from Sens. Sinema and Tillis carry on, as attempts to put DACA and border control on the Omnibus spending legislation continue. No language is available, although the outline of a deal seems to be there. It is questionable whether the tentative immigration deal will be advanced, especially with the announcement from Senator Sinema on her change in party affiliation late last week.
  • The chance for immigration reform being included in the Omnibus bill was already very slim before Sen. Sinema’s Certain government funding expires on Dec. 16. We expect that the Congress will pass a short-term continuing resolution by the 16th that will run through Dec. 23. There is still hope that the Omnibus bill will be passed before Christmas. There is a slight chance that it might be pushed into next year. As stated above, the chances of immigration reform in this legislation are still very, very slim. 

Citizenship application receipts to include automatic 24-month green card extension

  • Applies to all citizenship applications received by USCIS on and after Dec. 12, 2022
  • Green cards of citizenship applicants are automatically extended 24 months beyond their current expiration date
  • N-400 receipt with extension notation, along with expired green card, is acceptable List A document

Fourth Circuit Holds Employers Must Consult Unions About How to re I-9 Workforce

  • In an unpublished per curiam opinion, the Fourth Circuit held that Frontier Communications Corp. should have negotiated with Communications Workers of America before requiring workers to complete new Forms I-9
  • The Court said that Frontier should have discussed aspects of the I-9 process that affect workers, such as submission of personal documents, time allotted to complete the process, and any assistance given to employees who ran into issues completing the Forms I-9
  • Employers with a unionized workforce or companies considering a merger with or acquisition of a company with a unionized workforce should take note

DHS Designates Ethiopia for TPS for 18 months

  • DHS designated Ethiopia for TPS effective Dec. 12, 2022, through June 12, 2024
  • Applicants must prove continuous residence in the United States since Oct. 20, 2022, and continuous physical presence in the United States since Dec. 12, 2022

FOR THE WEEK OF DEC. 19, 2022

Legislative Update

  • The immigration deal being brokered by Sens. Tillis and Sinema that would address DACA/Dreamers, green card recapture and other immigration issues including the border and asylum reform, has been put on hold. Sens. McConnell and Cornyn signaled that there would not be Republican support for this effort in the Omnibus bill. 
  • As predicted, Congress has given itself another week to enact legislation in the Omnibus spending bill – through Dec. 23. We do not expect anything immigration related to pass, although there are efforts to include an H-2B deal. There have also been efforts to pass the Afghan Adjustment Act and versions of the Farm Workforce Modernization Act.

New I-485 Form Mandatory Beginning Dec. 23, 2022

  • USCIS will reject the 12/23/2022 version of the I-485 form if it is filed before 12/22/2022
  • USCIS will reject the 7/15/2022 version of the I-485 is if is filed after 12/22/2022
  • The 12/23/2022 version of the I-485 form incorporates information collection related to the Public Charge Ground of Inadmissibility and is reminiscent of the previous form version in effect during the Trump Administration

DOJ’s IER Continues its Focus on Discriminatory Job Ads, Requiring Specific I-9 Documents

  • SecureApp Technologies, a New Jersey based IT recruiting and labor staffing company, reaches a settlement with IER. For more than one year, SecureApp posted at least 12 job ads that solicited only foreign nationals seeking sponsorship or those who already had work visas. Securepp agreed to pay a civil penalty of $26,000. The company additionally agreed to review and revise its employment policies and submit them to IER approval, as well as its job ads, and ensure all recruiters undergo training and have access to the latest I-9 and E-Verify Handbook for Employers (M-274).
  • IER reaches a settlement with Navajo Express, a trucking company located in Colorado, which routinely required lawful permanent residents to provide copies of their green cards, even when they had provided alternate proof of authorization to work, and also asked them to provide proof of their new green cards when their existing cards had expired. Pursuant to the settlement, Navajo paid $40,000 in fines and agreed to training, revising its policies, and will be subject to IER monitoring for two years.