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The EB-2 National Interest Waiver and EB-1A Extraordinary Ability categories remain two well-established paths to a green card. They allow professionals to bypass the labor certification process and, in the case of EB-1A, to self-petition without a job offer. That has not changed.

What has changed is the level of preparation these cases now require. USCIS Form I-140 adjudication data through the fourth quarter of FY2025 indicates that adjudicators are scrutinizing these petitions more closely than in prior years. For petitioners, the data is clarifying rather than discouraging: strong, well-documented cases continue to be approved at high rates. The data confirms that how a case is framed and documented has a meaningful effect on outcomes.

What the Numbers Show

Approval rates in the NIW category have declined from their pandemic-era peak. USCIS approved roughly 96% of NIW petitions in FY2022, a figure inflated in part by a much smaller pool of filings. As the category grew in popularity, the approval rate moved to approximately 80% in FY2023, roughly 71% in FY2024, and 55.2% for full FY2025, with a lower fourth quarter as the agency worked through a record backlog of filings. See USCIS Immigration and Citizenship Data.

EB-2 NIW Approval RateBy Fiscal Year
FY2022~96%
FY2023~80%
FY2024~71%
FY2025 (full year)55.2%
FY2025 Q435.7%

EB-1A approval rates have remained comparatively stable. After several years in a 70–75% range, the category finished FY2025 at 66.9%, meaning approximately two of every three petitions were approved. The O-1 nonimmigrant extraordinary ability classification remained above 90% throughout FY2025.

Category (FY2025)Approval RateQ4 FY2025
EB-2 NIW (immigrant)55.2%35.7%
EB-1A (immigrant)66.9%~53%
O-1 (nonimmigrant)>90%>90%

What Is Driving the Trend

In NIW cases, USCIS is applying the Matter of Dhanasar framework with greater rigor, placing weight on measurable, demonstrated U.S. impact rather than forward-looking potential or broad sector-wide claims. Healthcare, core STEM, and national-security-adjacent fields continue to fare well, and well-framed cases in other fields are approved regularly. Contributions that demonstrably extend beyond a single employer, supported by concrete evidence, are better positioned under current adjudication practice.

In EB-1A cases, adjudicators continue to apply the two-step “final merits” analysis, treating the three-criteria threshold as a starting point rather than a conclusion. That approach is now being tested in litigation. In Mukherji v. Miller (D. Neb. Jan. 28, 2026), a federal district court questioned whether USCIS properly adopted the two-step framework and ordered a petition approved after the agency conceded the petitioner met five of the 10 criteria. The decision is limited to that case and USCIS has not changed its guidance, but it represents a notable development and may provide an additional argument where a strong record has been denied on vague or conclusory reasoning.

The shift in approval rates does not reflect the exclusion of borderline filings. It signals that the quality and specificity of the petition (the framing of the endeavor, the independence of the evidence, the clarity of the U.S. benefit) are factors in adjudication outcomes.

What It Means for Petitioners

For an NIW, the proposed endeavor should be framed narrowly and tied concretely to a specific, demonstrated U.S. benefit rather than a broad field or job title and paired with evidence that the petitioner’s work has already produced impact beyond a single employer. That includes adoption or citation of the work by others, deployment at scale, measurable outcomes, government or industry uptake, and independent letters from qualified individuals that address specific contributions rather than offering general praise.

For an EB-1A, each claimed criterion should be corroborated with objective, third-party evidence. The record should articulate a consistent narrative of sustained national or international acclaim, rather than relying on meeting the three-criterion threshold alone. In both categories, independent corroboration, verifiable metrics, and a clearly articulated U.S. benefit are factors that distinguish approved petitions.

A few practical points for those weighing their options:

Individuals who may qualify for both EB-1A and NIW should consider filing both petitions concurrently. This approach creates multiple opportunities for approval and preserves flexibility as cases progress. If both are approved, the beneficiary can pursue permanent residence through whichever category offers more favorable visa availability and processing timelines. This can be particularly relevant for individuals born in countries subject to immigrant visa backlogs, where movement in the Visa Bulletin may differ between the EB-1 and EB-2 categories.

Filing both petitions also allows applicants to secure a priority date as early as possible while accounting for uncertainty in either adjudication. Where a candidate is employer-sponsored and the national interest or extraordinary ability case is substantial but not conclusive, a PERM-based EB-2 or EB-3 case may serve as a parallel or alternative path — typically slower, but a reliable route for the right candidate profile.

For self-petitioners whose work does not fit a standard job description, the NIW and EB-1A categories remain available but often the most appropriate fit. In those situations, the practical approach is to develop the strongest possible case and, where appropriate, pursue multiple pathways simultaneously.

Conclusion

The EB-2 NIW and EB-1A categories remain viable pathways to permanent residence for highly accomplished individuals. Well-documented cases continue to be approved, and these categories remain relevant for individuals whose work delivers significant value to the United States. Recent data does not foreclose NIW or EB-1A petitions; it reinforces the importance of selecting the appropriate category, presenting a clear and credible record of achievement, and documenting the U.S. benefit with specificity.

For lawful permanent residents, becoming a U.S. citizen is often the final step in a long immigration journey. However, recent adjudication trends in N-400 Applications for Naturalization indicate U.S. Citizenship and Immigration Services (USCIS) is applying increased scrutiny to applications involving extended travel abroad, tax compliance issues, and criminal history concerns. Applicants who may have expected a relatively straightforward process are now increasingly encountering Requests for Evidence (RFEs), prolonged adjudications, and second interviews before receiving a final decision. 

As a result, pre-filing analysis and strategic timing of the naturalization application have become increasingly important. 

Increased Scrutiny of Extended Absences 

One recent trend involves USCIS scrutiny of applicants who spent more than 180 days outside the United States during the statutory period for naturalization. Under the Immigration and Nationality Act, absences of more than six months but less than one year can create a rebuttable presumption that the applicant disrupted the “continuous residence” requirement for naturalization purposes. While some applicants overcome this presumption, USCIS is increasingly issuing RFEs requiring substantial documentary evidence to establish that the applicant did not abandon U.S. residence. 

Following the COVID-19 pandemic, some permanent residents experienced unanticipated travel disruptions due to flight cancellations, border closures, illness, caregiving obligations for overseas family members, or other pandemic-related circumstances. Applicants who exceeded 180 days abroad by only a few days are increasingly receiving RFEs. 

USCIS often requests detailed evidence demonstrating ongoing ties to the United States during the period abroad, including: 

  • Proof of home ownership or residential leases; 
  • Utility bills and other evidence of maintaining a U.S. residence; 
  • Bank account activity and financial records; 
  • Evidence of ongoing U.S. employment; 
  • Tax filings as a U.S. resident; 
  • Insurance policies; 
  • School enrollment records for children; and 
  • Other documentation demonstrating continued intent to maintain permanent residence in the United States. 

Applicants should consider evaluating their travel history before filing an N-400 application, particularly where any single absence exceeded 180 days.  

Some lawful permanent residents mistakenly believe that a reentry permit fully protects both their green card status and future eligibility for U.S. citizenship. While a valid reentry permit may allow a permanent resident to remain outside the United States for up to two years without being deemed to have abandoned lawful permanent resident status, it does not preserve continuous residence for naturalization purposes. Applicants who spent extended periods abroad — even with an approved reentry permit — may still face scrutiny and potential delays when applying for citizenship. 

Tax Compliance Issues and Findings of “Good Moral Character” 

USCIS officers are increasingly examining whether applicants have fully complied with their U.S. tax obligations as part of the “good moral character” analysis required for naturalization eligibility. 

Applicants with substantial unpaid taxes may face challenges even where they have entered into payment agreements with the Internal Revenue Service (IRS). While an approved IRS installment agreement can help address concerns, USCIS may still examine whether the applicant has complied with payment obligations and demonstrated overall financial responsibility. 

Failure to timely pay taxes may result in a finding that the applicant lacks good moral character, which might lead to denial of the N-400 application. 

Equally notable are situations where lawful permanent residents failed to file U.S. tax returns as residents because they relied on an applicable tax treaty or filed as nonresidents. Many permanent residents are unaware that claiming non-resident tax status may carry immigration consequences. 

USCIS may view such filings as evidence that the individual represented themselves as a non-resident, which can: 

  • Result in a finding of lack of good moral character; 
  • Lead to denial of the N-400 application; and 
  • Potentially raise questions regarding abandonment of lawful permanent resident status. 

Criminal History and Increased Interview Scrutiny 

Applicants with any criminal history — including arrests, dismissed charges, expungements, or older convictions — may experience heightened scrutiny from USCIS during the naturalization process. 

USCIS officers are increasingly conducting extensive questioning at N-400 interviews regarding prior criminal conduct, including in cases involving minor offenses or incidents that occurred many years ago. 

In some cases, applicants are being asked to provide: 

  • Certified court dispositions; 
  • Police reports; 
  • Evidence of completion of probation or rehabilitation programs; 
  • Additional testimony regarding underlying conduct; and 
  • Updated background documentation after the initial interview. 

Second interviews and prolonged background checks have become more common in cases involving criminal history or other discretionary concerns. 

Applicants should not assume that an expunged record or dismissed charge will be treated as irrelevant for immigration purposes. USCIS may still request disclosure and documentation regarding such incidents.  

Delays and Second Interviews Are Becoming More Common 

Across these categories, naturalization adjudications are becoming longer and more complex. 

Cases involving extended absences, tax concerns, or criminal history are frequently delayed beyond standard processing times. It is increasingly common for USCIS to: 

  • Issue multiple RFEs; 
  • Continue cases after the initial interview; 
  • Schedule second interviews; 
  • Request additional supervisory review; or 
  • Place cases into extended background or fraud review processes.  

For applicants facing these potential concerns, timing the filing of the N-400 application is important. 

Where applications are stalled following RFEs, continued interview review, or prolonged background checks, federal mandamus litigation may provide a remedy. In appropriate matters, mandamus actions have been filed in federal district court to compel USCIS to resume adjudication and issue decisions on delayed naturalization applications. Mandamus litigation is not appropriate in every case, but it may be a strategic option where applications remain unreasonably delayed without meaningful government action. 

The Importance of Strategic Pre-Filing Analysis 

Some applicants remain eligible for naturalization despite prior travel, tax, or criminal history complications. Filing prematurely or without sufficient preparation, however, may create unnecessary risk. 

In some situations, delaying filing may strengthen a case by allowing additional time to establish continuous residence, resolve tax liabilities, or address prior criminal issues. In others, assembling supporting documentation before filing may help minimize delays and reduce the likelihood of adverse findings. 

Given the level of scrutiny currently being applied by USCIS, applicants should consider asserting potential issues before submitting an N-400 applications and may wish to develop a strategy to address them. 

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.

H-1B workers who lose their jobs have sometimes followed the strategy of filing a Form I-539 application to change status from H-1B to visitor status (B-1/B-2) within the 60-day grace period following termination. The goal of that approach is to allow terminated H-1B workers sufficient time to interview with potential employment leads, secure new employment, and transition back to H-1B status, without departing from the United States. For many years, this strategy was widely accepted, and was supported by published U.S. Citizenship and Immigration Services (USCIS) guidance, upon which workers, employers, and immigration counsel alike relied.

In recent months, however, stakeholders have observed a policy shift regarding this strategy, with increasing frequency of Requests for Evidence (RFEs), Notices of Intent to Deny (NOIDs), and, in some cases, denials targeting this approach. Affected workers and their employers should be aware that this approach now carries risks that were not previously associated with it.

What Changed

USCIS previously maintained a guidance page titled, “Options for Nonimmigrant Workers Following Termination of Employment,” which stated that job searching and attending interviews are permissible B-1/B-2 activities. As of March 31, 2026, the guidance page has been archived. Adjudicators have taken the position that the guidance on the archived page is no longer current and does not control their decisions.

As a result, job searches are being characterized in some adjunctions as an impermissible primary purpose of U.S. presence. With respect to B-2 nonimmigrant visitor for pleasure, USCIS has reasoned that an open-ended job search does not fit the definition of a temporary visit for pleasure. Requests for a maximum 180-day stay in visitor status have also been challenged as excessive, where the stated rationale involves concluding personal affairs or exploring employment opportunities.

RFEs have increasingly asserted that searching for work, attending interviews, and accepting employment are activities inconsistent with B-1/B-2 classification. In addition, USCIS has — in some cases — used a subsequent H-1B petition filed by a new employer on behalf of a foreign national who previously filed a change of status application as evidence that the foreign national misrepresented intent at the time of that earlier filing. In other words, USCIS has in recent cases argued that the subsequent H-1B filing demonstrates the foreign national never intended a visitor stay, treating changed circumstances as evidence of original preconceived intent.

The Statutory and Regulatory Framework

These developments reflect a change in USCIS policy, rather than the underlying law. The controlling statute, the Immigration and Nationality Act (INA) Section 101(a)(15)(B), defines B-1/B-2 nonimmigrant status as temporary visits for business or pleasure, respectively, and prohibits admission for the purpose of performing skilled or unskilled labor, rather than business meetings such as job interviews, or review, consideration, or acceptance of job offers. The regulatory framework reflects the same distinction. The text of the INA and relevant regulations have not changed. What has changed is USCIS adjudicatory practice. Accordingly, applicants should be prepared to present clear legal arguments establishing eligibility for the requested change of status at the time of initial filing, in anticipation of RFEs or other requests consistent with this shift.

The 60-Day Grace Period

The 60-day grace period available to foreign national workers following termination of H-1B employment does not guarantee approval of a change of status application. The grace period permits a terminated H-1B worker’s new employer to file a change of employer H-1B amendment in country or for the foreign national to file a change of visa status application with USCIS, likewise without departing. Filing a Form I-539 within the 60-day grace period preserves authorized stay in the U.S. while the application is pending, but it does not guarantee approval of the requested benefit.

If the I-539 is ultimately denied after the grace period has expired, the worker may be treated as having fallen out of status. Unlawful presence would then begin to accrue, with consequences for future immigration benefit requests, admissibility, and reentry. Based on the recent changes, a timely filing alone does not insulate an applicant from the risks described above.

Potential Cost Implications for Employers

Employers seeking to hire H-1B workers who previously faced termination and filed a B-1 or B-2 change of status, which was later denied, may face financial risk.

If such a change of status application is denied, the worker would be required to depart the United States and seek a visa at a U.S. embassy or consulate in the country of their nationality or most recent residence. Under the Presidential Proclamation that took effect in Sept. 2025, certain new H-1B petitions involving consular processing are subject to a $100,000 fee, depending on employer size and circumstances.

Considerations for Workers and Employers

Terminated H-1B workers may still file for a B-1/B-2 change of status within the 60-day grace period, and USCIS continues to approve some requests. However, the added layer of due diligence requires that these filings should be constructed with the current adjudication landscape in mind. The application should reflect legitimate, temporary purposes with clear endpoints, including concrete evidence of the intended temporary nature of the stay, and ties to the country of nationality or last residence. Job searches and interviews should not be identified as the stated primary purpose, even if those activities may occur incidentally to the temporary stay.

Where USCIS questions whether a job search was the primary purpose of an intended stay, a response that addresses the intent question directly, reframes the stated purpose around permissible activities, and provides concrete supporting documentation may support the application process.

When building their hiring timelines, employers may wish to consider the possibility of delays resulting from RFEs, NOIDs, or other USCIS action. Additionally, employers should consider including contingency plans addressing the possibility of denial — such as the potential for an overseas assignment. This shift in USCIS adjudication means that neither workers nor employers should treat this strategy as a reliable or guaranteed bridge for continued U.S. presence and quick processing of H-1B petitions.

U.S. consulates across India have begun cancelling and automatically rescheduling H-1B and H-4 visa appointments (often 90 to 120 days later) due to the new online presence and social media vetting rules taking effect Dec. 15, 2025. Although the Department of State (DOS) has not issued a formal announcement, all major posts, including Chennai, Hyderabad, Mumbai, and New Delhi are implementing the same operational changes.

Individuals who already traveled abroad or made travel plans and then received notices that their visa interviews were rescheduled into next year may be most affected right now. These applicants may now face extended time outside the United States. Expanded social media vetting and enhanced security background checks are also increasing the likelihood that applicants might experience delays abroad even after completing their visa interviews, as more cases are routed into administrative processing.

New visa applicants may also need to wait for appointments into next year and should be aware that even confirmed appointments might be rescheduled.

These developments coincide with a recent DOS policy shift requiring most visa applicants to process applications in their country of citizenship, nationality, or legal residence. Indian nationals may no longer rely on securing appointments in third-country posts with shorter wait times. Together, these changes might create new challenges for companies that depend on predictable international mobility.

Key Consulate Actions Affecting Employers

Across all posts, the notices share the same core instructions:

  • Previously scheduled interview dates are no longer valid;
  • New appointment dates have been automatically assigned months out;
  • Biometric appointments remain unchanged;
  • Applicants must download revised appointment letters through the visa portal;
  • Rescheduling is strictly limited and may be unavailable if the MRV fee receipt is more than one year old; and
  • Missed appointments may result in fee forfeiture.

These actions reflect a coordinated response to the increased time required for expanded digital footprint screening.

Employer Considerations

The visa-processing environment for India has changed quickly. Employers may wish to adjust planning and internal protocols.

  1. Reevaluate all travel requiring visa stamping in India: Interviews are being postponed by several months. With third-country processing no longer permitted, employees who need visa stamping may face extended time outside the United States. Employers may wish to reassess upcoming international travel for such employees.
  1. Extend lead time in staffing, rotation, and project planning: Short-notice availability for visa appointments in India can no longer be assumed. Consider incorporating additional buffer time for workforce planning, onboarding schedules, client assignments, and project deployments.
  1. Develop contingency plans for mission-critical personnel: For employees essential to operations or client delivery, travel to India may carry heightened return-risk. If travel is unavoidable, managers should prepare for the possibility that return dates may shift.
  1. Update internal travel-approval procedures: Trips involving visa stamping now involve increased uncertainty. HR, mobility, or legal review may be appropriate before granting approval for international travel.
  1. Prepare expedite-request documentation early: Requests for expedited appointments may be difficult to secure. Increased demand across the market and stricter standards applied by consular authorities mean that only the most compelling business emergencies might qualify. Consider gathering strong business-impact evidence in advance—such as operational disruption, financial implications, or urgent client need.
  1. Advise employees who will need visa stamping to avoid non-essential travel: Employees who must obtain a new visa stamp to return to the United States should consider deferring non-essential travel to India. Lengthy appointment delays and the inability to process in other countries increase the likelihood of protracted stays abroad.
  1. Ensure employees understand the expanded social media and online presence review: Accuracy and consistency across public platforms will be reviewed as part of the visa process. Employers should encourage employees to review their online presence to ensure it aligns with their actual employment and immigration history.

Takeaways: Employer Planning

This disruption may be temporary and consular operations may begin to normalize over the next four to six months. Until then, visa applicants who already traveled or made plans before these changes were announced may experience the greatest impact. New applicants might need to plan around appointment availability into next year, with the understanding that rescheduling may occur with little notice. Expanded social media vetting and enhanced security checks may continue to contribute to delays even after interviews take place.

GT will continue monitoring developments across all consulates. Employers with India-based workforces, time-sensitive assignments, or frequent global rotations may wish to reassess mobility strategies using these new constraints as planning baselines.

In November 2025, both the Department of Homeland Security (DHS) and the Department of State (DOS) signaled changes to how the U.S. government will determine whether visa applicants or those seeking permanent residence are “likely to become a public charge.” While both agencies are moving toward a broader, more discretionary approach, their guidance reveals important similarities and differences that may affect immigrants, nonimmigrants, and their advocates.

DHS Proposed Rule: Rescinding the 2022 Regulations

On Nov. 19, 2025, DHS published a Notice of Proposed Rulemaking (NPRM) indicating its intent to rescind the 2022 public charge regulations. DHS plans to withdraw the 2022 rule, which narrowly defined public charge and limited the types of public benefits considered (mainly cash assistance and long-term institutionalization) because the agency believes it is inconsistent with congressional intent and too restrictive. Officers would be guided by both statutory “minimum factors” (age, health, family status, assets/resources, and education/skills) and any additional evidence relevant to an individual’s case showing self-sufficiency. The rule would apply to applicants for admission or adjustment of status within the United States (e.g., those filing Form I-485 with USCIS).

Key Points:

  • Restores Officer Discretion: DHS officers would once again consider the “totality of the circumstances,” not just a narrow set of benefits or factors.
  • Any Means-Tested Benefits: Officers may take into account any means-tested public benefit—not just cash assistance and long-term care—when assessing self-sufficiency.
  • No Bright-Line Rule: There are no fixed criteria; instead, each case is judged on its unique facts.
  • Statutory Minimum Factors: Age, health, family status, assets/resources, education/skills, and (when required) the Affidavit of Support.
  • Forward-Looking: The determination is prospective—whether the individual is likely to become a public charge at any time.

DOS Consular Guidance: Implementing Public Charge for Visa Applicants

It appears that DOS issued new guidance to consular officers around the world, updating the way they assess whether visa applicants –both immigrant and most nonimmigrant (temporary)– are “likely to become a public charge” under Immigration and Nationality Act (INA) section 212(a)(4). An unofficial copy of the cable dated Nov. 6, 2025, offers insight into how U.S. consular officers are being instructed to implement public charge policy. This guidance marks a renewed focus on self-sufficiency for both immigrant and nonimmigrant visa applicants and clarifies what evidence officers should evaluate during visa interviews.

Key Points:

  • Broad Applicability: Most visa categories are subject to public charge review unless they fall into specific exempt categories (as listed in 9 FAM 302.8-2(B)(6)).
  • Comprehensive Review: Consular officers must review all available evidence—petitions, interviews, medical reports, affidavits, financial and employment documents, and any record of public benefits use (domestic or abroad).
  • No Bright-Line Test: No single factor (except lacking a required Affidavit of Support) is dispositive; decisions must be based on the “totality of the circumstances.”
  • Statutory Minimum Factors: Same as DHS—age, health, family status, assets/resources, education/skills, and (when required) Affidavit of Support.
  • Benefit Use—Past and Present: Both cash benefits and long-term institutionalization in the U.S., as well as similar assistance received abroad, are relevant. Officers are also told to consider use of non-cash assistance (like food, housing, or private charity) as a possible indicator of future need, even if not strictly covered by regulation.
  • Burden of Proof: Rests entirely on the applicant to prove they are not likely to become a public charge.
  • Special Guidance for Affidavit of Support: While necessary for many family-based (and some employment-based) cases, a sufficient affidavit does not guarantee approval; the credibility and ability of the sponsor is also scrutinized.

Key Contrasts of Potential DHS Guidance and Recent DOS Guidance

  • Breadth of Evidence: DOS explicitly encourages officers to consider any evidence of need—public or private, U.S. or foreign. DHS’s proposal is less explicit about foreign aid but restores broad discretion, which might include such evidence.
  • Application Frequency: At consulates, even repeat nonimmigrant applicants (e.g., tourists) may face public charge review every time they apply. In the U.S., the focus is on admission or adjustment.
  • Documentation: DOS guidance makes clear that applicants must provide and, if requested, verify financial and other supporting documents. DHS’s proposed rule might require similar evidence, but details may come in future policy guidance.
  • Affidavit of Support: For DOS, even a technically sufficient affidavit is scrutinized for credibility and the sponsor’s financial reality. DHS’s approach is similar, but with less emphasis in the proposed rule on sponsor credibility.

Conclusion: Impacts on Applicants

Both DHS and DOS are moving to a more discretionary, case-by-case approach that looks beyond a narrow list of public benefits or financial factors. Applicants—whether seeking a green card in the United States or a visa abroad—may wish to document their financial stability, health, family situation, and employability in detail. Past use of any public assistance, even outside the United States, may be considered, though it is not automatically disqualifying.

The bottom line: Self-sufficiency is the touchstone, and officers at both DHS and DOS will have broad latitude to deny applications if they find an applicant is likely to become a public charge, based on the totality of the evidence.

Applicants should monitor for new interpretive guidance from DHS and updates to the DOS Foreign Affairs Manual as these policies evolve.

On Oct. 16, 2025, the U.S. Department of Homeland Security (DHS) published a final rule in the Federal Register establishing a new $1,000 immigration parole fee required by the H.R. 1 Reconciliation Act. That same day, U.S. Citizenship and Immigration Services (USCIS) confirmed immediate implementation for some individuals who are granted parole, re-parole, or parole in place on or after the effective date. This fee does not impact those individuals who have traveled briefly abroad on Advance Parole that was granted based on a pending I-485 Application.

Overview of Parole and Fee Application

Parole allows DHS to permit a noncitizen to enter or remain temporarily in the United States without being formally admitted, when justified by urgent humanitarian reasons or significant public benefit. Parole is discretionary and temporary; it does not confer visa status or a path to permanent residence. The $1,000 fee applies when DHS grants parole, not when a request is filed, and it may also apply to individuals previously granted parole who are re-paroled or extended after Oct. 16, 2025. Individuals who already hold valid parole granted before that date are not charged retroactively. The fee attaches only when a new grant of parole is issued. As a result, DHS will not collect or bill for the fee on existing parole periods, though future extensions or re-paroles will trigger payment.

Frequency and Duration of the Fee

The fee is assessed each time parole is granted, including initial approval, re-parole, or extension. It covers the entire period authorized in a single grant and is not charged per entry while that parole remains valid. For example, if a parole document permits multiple entries during its validity, those re-entries are covered by the same fee. However, any new parole authorization or extension will require a new $1,000 payment. A family of four paroled under a humanitarian program would owe $4,000 upon approval, and another $4,000 if re-paroled later. The structure is per grant, not per household or lifetime.

Payment Procedures and Timing

The rule provides that the fee is due at the time parole is granted. USCIS will collect payment for parole and re-parole requests it adjudicates, typically those filed on Form I-131; U.S. Customs and Border Protection (CBP) will collect the fee at ports of entry; and U.S. Immigration and Customs Enforcement (ICE) will collect it for individuals paroled from custody. Each agency will issue a conditional approval notice requiring payment before parole becomes effective. To date, USCIS has not indicated how long applicants will have to make payment after receiving a conditional approval. The Federal Register specifies only that the notice will “specify a date by which payment of the fee must be made.” Until DHS issues further guidance, applicants may expect a short payment window and plan accordingly.

Limited Exceptions and Employer Carve-Outs

DHS may waive the fee in limited cases where the applicant meets one of 10 statutory exceptions, including life-threatening medical emergencies, organ donation, accompanying parents or guardians of affected minors, urgent family visits or funerals, adopted children with critical medical needs, individuals paroled to attend immigration proceedings, certain Cuban or Haitian entrants defined in §501(e) of the Refugee Education Assistance Act of 1980 (including participants in the Cuban and Haitian Family Reunification Parole programs), and those whose parole provides a significant public benefit such as law-enforcement cooperation.

The rule includes an exception for adjustment of status applicants (Form I-485) who travel briefly abroad and return to the United States on an advance parole. This category covers both employment-based and family-based green card applicants who are beneficiaries of I-140 or I-130 petitions. The rule expressly exempts them from the new $1,000 fee when re-entering on a valid advance parole associated with a pending adjustment application. However, DHS has not defined what constitutes a “brief” trip abroad for purposes of this exception, leaving some ambiguity as to the duration of travel that will preserve eligibility for the fee exemption.

Who Is Most Affected

The group most affected by the rule are humanitarian and discretionary parole recipients, including nationals of Afghanistan, Ukraine, Nicaragua, and Venezuela, among others, paroled under case-by-case or programmatic DHS initiatives. These individuals often must renew parole periodically to maintain lawful presence or employment authorization. For these individuals, the recurring $1,000 per-person fee represents a new cost consideration, particularly for families or sponsors who manage parole renewals every one to two years.

Implications for Employers and HR Teams

Although employer-sponsored green-card applicants remain exempt, the rule adds complexity for organizations supporting humanitarian, dependent, or discretionary parole cases. A $1,000 payment per grant is a material cost, and conditional approvals may require careful monitoring to avoid lapses.

HR and legal teams should consider:

  • Incorporating the new fee into global-mobility and immigration budgets,
  • Confirming payment timelines upon receipt of conditional approvals,
  • Educating affected employees about the requirement, and
  • Consulting counsel to determine if an exception applies and to prepare supporting documentation.

USCIS and DHS may release further guidance clarifying payment procedures, adjudication standards, and uniform deadlines in the coming weeks.

Conclusion

The $1,000 parole fee represents a policy shift in DHS’ parole framework. Employers might use the rule as an opportunity to plan, budget, and communicate with employees and better manage parole-based travel and compliance.

The U.S. Department of State’s National Visa Center (NVC) has issued updated guidance that impacts employment-based immigrant visa applicants, including EB-5 investors. This change is especially relevant for globally mobile professionals and investors residing outside their country of nationality.

Key Policy Changes

Applicants must now

  • Interview for the immigrant visa in their country of residence, or
  • Request to interview for the immigrant visa in their country of nationality, subject to approval.

To attend the immigrant visa interview at a consular post, applicants must submit proof of legal residence in the country where their case is assigned. This applies to all employment-based categories, including:

  • EB-1 (Executives, Researchers)
  • EB-2 (Advanced Degree Professionals, NIW)
  • EB-3 (Skilled Workers)
  • EB-5 (Investors)

Acceptable Proof of Residency Includes

  • Passport with a residency stamp,
  • Valid work or student visa,
  • Legal permanent resident card or landing document,
  • Refugee or humanitarian documentation, or
  • Other official documentation confirming lawful residence.

Importantly, having a visitor visa would not qualify an applicant to interview in a country; evidence of a longer-term visa or status is required.

Designated Processing Posts for Countries Without US Consular Operations

Applicants from countries where the United States does not conduct routine visa services must attend interviews at designated alternate posts. Below is a summary of current assignments:

NationalityDesignated Location(s)
AfghanistanIslamabad
BelarusVilnius, Warsaw
ChadYaoundé
CubaGeorgetown
HaitiNassau
IranDubai
LibyaTunis
NigerOuagadougou
RussiaAstana, Warsaw
SomaliaNairobi
South SudanNairobi
SudanCairo
SyriaAmman
UkraineKrakow, Warsaw
VenezuelaBogotá
YemenRiyadh
ZimbabweJohannesburg

Important Takeaways

  • Third-country processing is not permitted unless special circumstances apply.
  • Traveling to another country solely to apply for a visa does not qualify as a special circumstance.
  • There may be delays if applicants do not provide sufficient proof of residence in the assigned country.
  • Existing appointments for nonimmigrant visas may not be canceled, but applicants may be refused under INA §214(b) if they cannot prove residence.

Considerations for Employers and Investors

  • Confirm assigned consular posts.
  • Gather and submit appropriate residency documentation.
  • Contact your immigration counsel to request a transfer or explain special circumstances, if needed.

It is critical for companies and EB-5 investors to prepare documentation and coordinate through counsel with the NVC to enhance timely and compliant visa processing.

In this timely episode of Big Law Redefined Podcast’s Immigration Insights Series, Kate Kalmykov and Jennifer Hermansky, Greenberg Traurig Immigration & Compliance Practice attorneys, break down the latest developments in the EB-5 immigrant investor program as of September 2025.

With the clock ticking toward the expiration of key grandfathering provisions under the Reform and Integrity Act (RIA), they discuss the rush to file, the importance of source of funds documentation, and pitfalls of incomplete or skeletal filings.

The episode explores significant changes in USCIS and State Department policies, including stricter scrutiny of Communist Party membership, retroactive review of lawful source of funds, and the impact of the new travel ban on investors from certain countries.

Kate and Jen share updates on EB-5 processing times, visa issuance delays, and strategies for maintaining lawful permanent residence, including reentry permits and SB-1 returning resident visas.

They provide insights into planning EB-5 filings amid uncertainty, navigating complex compliance requirements, and protecting family members under changing Child Status Protection Act (CSPA) rules.

Kate and Jen also address recent trends in adjustment of status filings, work and travel authorization, and the potential for visa retrogression.

Tune in to learn more about EB-5 information updates and fast-moving immigration policies in 2025.

Click here to listen to the full episode.

On Sept. 19, 2025, the Trump administration published additional details about the proposed Gold Card program. The https://trumpcard.gov/ website went live with new information, outlining three categories of programs:

  1. The Gold Card: Requires a USD $1 million contribution for permanent residency. The website states that the Gold Card is based on the individual’s ability to substantially benefit the United States. Notably there are no tax provisions; applicants would remain subject to worldwide income taxation.
  2. The Platinum Card: Requires a USD $5 million contribution and allows the holder to reside in the United States for up to 270 days per year without being subject to tax on non-U.S. income. This would replace other temporary visas.
  3. The Trump Corporate Gold Card: Allows a U.S. business to make a USD $2 million contribution to transfer an employee to the United States. This benefit may be transferable to another employee for a fee.

The website states that processing fees and background vetting will occur for all three card types, although no information about the fees or the process has been posted as of the date of this blog. The site also indicates that contributions will be made to the U.S. Department of Commerce, but no information is available about how those funds will be used by the U.S. government. Importantly, this contribution differs from the EB-5 program, where investors may eventually recover their investment funds depending on the success of the business. It also unclear whether the “vetting” will involve a background check, proof of the source of funds ( as required in the EB-5 program), or both. Moreover, there is no mention of dependent applicants or whether family members of the main applicable will receive benefits under the program.

Of particular interest is a statement on the website that a Gold Card will be either an EB-1 or EB-2 preference green card. These categories, and their underlying subcategories of permanent residence, are statutorily authorized by Congress and have specific visa number allocations. It is possible this designation could be challenged in court as outside the authority of the Executive Branch. Additionally, applicants born in Mainland China and India may face significant visa backlogs, as these delays already exist in the EB-1 and EB-2 preference categories.

At this time, it is unknown when the fees or application instructions will be released to the public. Based on the lack of information regarding requirements, fees, process, and timelines, it does not appear that applicants can apply yet.