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The landscape for Temporary Protected Status (TPS) and humanitarian parole continues to change rapidly, creating uncertainty for hundreds of thousands of foreign nationals and posing significant compliance challenges for U.S. employers.

Recent developments involving Haiti, Venezuela, Ukraine, and other TPS-designated countries demonstrate that temporary immigration protections may change quickly due to government action, federal court decisions, and evolving agency guidance. Employers and foreign nationals should carefully evaluate how these developments might affect employment authorization, Form I-9 compliance obligations, and long-term immigration planning.

Haiti TPS: End of Protection Creates Urgent Need for Planning

One of the most significant recent developments involves the termination of Haiti’s TPS designation. Haiti TPS beneficiaries have relied on temporary protection and employment authorization for several years due to ongoing country conditions. However, DHS announced the termination of Haiti TPS, and after litigation-related delays, the termination process has moved forward. As a result, affected Haitian nationals may lose both protection from removal and employment authorization unless they qualify for another form of immigration relief.

For employers, Haiti TPS presents a significant Form I-9 compliance issue. Employees who previously relied on TPS-related Employment Authorization Documents may have received extensions or continued work authorization based on litigation or government notices. Employers may not rely on the expiration date printed on an EAD card without reviewing the applicable USCIS guidance and determining whether the employee continues to have valid work authorization. Affected individuals may also wish to evaluate whether they have alternative immigration options, including employment-based sponsorship, family-based immigration, asylum, or other available humanitarian pathways.

Venezuela TPS: Multiple Designations Create a Complicated Legal Landscape

Venezuelan nationals face one of the most complicated TPS situations because Venezuela has been designated for TPS twice, creating two different categories of beneficiaries with different eligibility timelines and employment authorization considerations.

DHS actions seeking to terminate Venezuelan TPS have been challenged through litigation, resulting in a shifting legal landscape. The status of Venezuelan TPS beneficiaries has depended on factors including the applicable designation, registration period, court decisions, and subsequent USCIS guidance. This means that Venezuelan TPS holders must not be evaluated as a single group. Two Venezuelan nationals with TPS may have different rights depending on when they registered, which designation applies to them, and whether their work authorization has been extended through agency action or court order.

Employers with Venezuelan TPS employees should carefully review each employee’s documentation and applicable Form I-9 guidance before taking any action based on an EAD expiration date. Similarly, Venezuelan nationals should consider whether they have options beyond TPS, including employment-based immigration, family-based options, asylum, or other forms of relief. The uncertainty surrounding Venezuelan TPS highlights the broader challenge with relying on temporary humanitarian protections as a long-term immigration strategy.

Ukraine: Humanitarian Parole Requires Long-Term Planning

Ukrainian nationals in the United States have largely relied on humanitarian parole programs, including Uniting for Ukraine, rather than TPS. Unlike TPS, humanitarian parole is inherently temporary and does not provide a direct path to permanent residence. Individuals who entered through parole may wish to track their parole expiration dates and determine whether they qualify for another immigration benefit before their authorized stay expires.

Depending on their circumstances, Ukrainian nationals may qualify for other options, including employment-based sponsorship, family-based immigration, asylum, or other humanitarian protections. However, continued reliance on parole alone may create uncertainty as parole periods approach expiration. Employers should also be aware that an employee who initially received work authorization through a humanitarian parole program may require careful review when employment authorization must be reverified.

Other TPS Designations Remain Uncertain

Beyond Haiti and Venezuela, several other TPS designations remain subject to changing government policy and litigation. Countries affected include Afghanistan, Burma (Myanmar), Cameroon, Ethiopia, Honduras, Nepal, Nicaragua, Somalia, South Sudan, and Yemen, among others. The result is a complex patchwork where protections may differ based on country, registration date, litigation status, and the specific government guidance currently in effect.

Employer Compliance Considerations

For employers, the current environment requires careful attention to Form I-9 compliance.

Employers may wish to:

  1. Review current USCIS guidance before reverifying employment authorization for TPS and humanitarian parole employees.
  2. Avoid making employment decisions based solely on an expired EAD without determining whether an extension applies.
  3. Maintain consistent procedures for employees whose work authorization depends on temporary programs.
  4. Monitor developments affecting countries represented in their workforce.

Employers should also consider conducting proactive reviews of their workforce to identify employees whose work authorization depends on TPS, parole, or other temporary programs.

Temporary Protection Requires Permanent Planning

TPS and humanitarian parole provide critical protection during periods of crisis, but they are temporary solutions. Recent developments involving Haiti, Venezuela, Ukraine, and other countries demonstrate the importance of evaluating longer-term immigration strategies. Foreign nationals relying on temporary protections should consider whether they qualify for permanent immigration options before their current status or work authorization expires. Employers may also want to take a proactive approach to immigration planning to minimize disruption and maintain compliance.

As the legal and policy landscape continues to evolve, both employers and foreign nationals should closely monitor developments affecting TPS, humanitarian parole, employment authorization, and workplace compliance obligations.

In May 2026, United States Citizenship and Immigration Services (USCIS) issued a policy memorandum signaling a shift in how employment-based permanent residence cases may be processed. The memorandum encourages adjudicators to deny adjustment of status (Form I-485) applications rather than issue requests for evidence (RFEs) in appropriate cases, with the expectation that many applicants could instead pursue immigrant visa processing abroad through U.S. consulates.

Considered alongside the current state of the Department of State (DOS), the policy raises an important question: can DOS realistically absorb an increase in these cases?

Recent reports suggest the answer is uncertain. Also see our June 2026 blog post on early implementation trends.

A Department Under Strain

A recent Financial Times article describes challenges facing the DOS. More than half of U.S. ambassadorial positions reportedly remain vacant, staffing has been reduced by more than 20%, and over 3,000 employees have departed. Career diplomats have been replaced at historically low rates, while consular sections – already managing high visa demand – are expected to operate with fewer personnel and reduced institutional experience.

Although embassies continue operating under Chargés d’Affaires, leadership vacancies and workforce reductions affect efficiency, consistency, and the DOS’ capacity to process complex immigration matters.

For years, employment-based applicants have generally viewed adjustment of status as the more predictable path to permanent residence because it allows them to remain in the United States while USCIS adjudicates the case. If a growing number of applicants are instead required to complete processing through U.S. consulates overseas, the operational realities at DOS become important.

What This Could Mean for Employment-Based Applicants

Longer Processing Times

Shifting cases from USCIS to DOS may transfer existing backlogs from one agency to another rather than reduce overall processing times.

Employment-based immigrant visa cases often require coordination across multiple government agencies, including the National Visa Center and the applicable U.S. embassy or consulate. Reduced staffing and fewer available interview appointments could lengthen the time required to complete permanent residence processing.

For employers planning workforce transitions or international recruitment, these delays may create uncertainty.

Greater Risk of Status Gaps

A key advantage of adjustment of status is that applicants may remain lawfully present in the United States while the application is pending.

Applicants pursuing consular processing, however, face a different set of challenges.

If an individual reaches the end of their underlying nonimmigrant status before an immigrant visa interview becomes available, questions may arise regarding whether they can lawfully remain in the United States while waiting for overseas processing. Depending on the facts of the case, applicants may need to maintain an independent nonimmigrant status for a longer period than originally anticipated.

This is particularly important for employees whose H-1B, L-1, E-2, TN, or other temporary status may be approaching expiration.

Employment Authorization May No Longer Be Available

Applicants adjusting status in the United States generally become eligible to obtain employment authorization documents (EADs) and advance parole while their Form I-485 is pending.

Applicants pursuing immigrant visa processing abroad generally do not receive these interim benefits.

As a result, employers may need to rely on extensions of underlying work-authorized status. Where extensions are unavailable, interruptions in employment authorization are a possibility worth planning for.

Travel and Mobility Challenges

Adjustment applicants typically receive advance parole allowing international travel while their green card application is pending.

Consular processing requires applicants to coordinate travel, visa interviews, medical examinations, and international logistics. Delays in visa issuance following an interview can result in employees remaining abroad for an extended period, disrupting business operations and personal obligations.

Variability in Visa Adjudications

Reduced staffing may also affect consistency.

Officers handling complex employment-based immigrant visa cases with less experience may produce greater variation in adjudications. Applicants and employers should anticipate more detailed interview preparation and more comprehensive supporting documentation.

Practical Considerations for Employers

Employers sponsoring permanent residence should evaluate whether employees have a viable strategy for maintaining work authorization if processing extends beyond original expectations.

Considerations include:

  • Reviewing expiration dates for underlying nonimmigrant status.
  • Identifying employees who may require additional H-1B, L-1, or other status extensions.
  • Preparing for longer overseas processing timelines.
  • Assessing business continuity if key personnel must remain abroad pending visa issuance.
  • Building additional time into onboarding and workforce planning.

Looking at the Broader Picture

These developments may represent more than a temporary adjustment.

If USCIS increasingly directs applicants toward consular processing while DOS continues operating with reduced staffing and leadership vacancies, employment-based immigration processing may experience changes affecting where cases are adjudicated and the timing of permanent residence processing.

Immigration strategies that assumed adjustment of status as the default path warrant review, with greater attention to maintaining nonimmigrant status, preserving uninterrupted work authorization, and preparing for longer and more complex consular processing.

As federal immigration agencies continue to evolve, permanent residence planning will benefit from evaluating how the immigration system functions as an interconnected whole rather than focusing on any single agency’s policy change in isolation.

Recent news reports regarding the erroneous registration of noncitizens to vote serve as an important reminder of a broader issue that immigration practitioners encounter with increasing frequency: the disconnect between state administrative systems and the federal immigration system.

While these incidents often generate discussion about election administration, they also highlight an equally important concern — the potentially severe immigration consequences that may arise when noncitizens unknowingly rely on inaccurate information or actions taken by a government agency.

For many noncitizens, a routine interaction with a state agency may become a significant immigration issue years later. Unfortunately, because state and federal agencies often operate independently, the consequences of an administrative error may not become apparent until an individual applies for an immigration benefit or is otherwise reviewed by federal immigration authorities.

A Disconnect Between State and Federal Systems

Some people assume that federal immigration agencies and state agencies communicate seamlessly. In reality, they often operate independently, with different responsibilities and limited coordination.

State agencies responsible for driver’s licenses, voter registration, and jury administration generally do not have direct access to federal immigration systems to verify an individual’s immigration status. Likewise, federal immigration agencies — including U.S. Citizenship and Immigration Services (USCIS), U.S. Customs and Border Protection, Immigration and Customs Enforcement, and the Department of State — may not become aware of a state administrative action until years later, when an individual applies for lawful permanent residence, naturalization, a visa, or another immigration benefit.

By that point, what began as a routine interaction with a state agency may require a detailed legal analysis under the Immigration and Nationality Act (INA).

How These Situations Might Arise

Many states offer voter registration during driver’s license applications or renewals pursuant to the National Voter Registration Act of 1993 (Motor Voter Act), 52 U.S.C. §§ 20501 et seq. While the law was designed to increase voter participation, it also means that routine DMV transactions may inadvertently create immigration issues when citizenship is not accurately verified.

Mistakes might occur for many reasons, including:

  • Misunderstanding an applicant’s immigration status;
  • Incorrectly recording citizenship information;
  • Processing voter registration despite an applicant declining it;
  • Applicants inadvertently signing electronic forms; or
  • Language barriers that prevent applicants from fully understanding the forms they are completing or the legal significance of what they are signing.

Some noncitizens might assume that if a government employee offers voter registration or processes an application, they must be eligible. Others receive official correspondence from a government agency and may believe it must be accurate. What appears to be a routine administrative process may have profound immigration consequences.

Jury Summonses Present Similar Challenges

Voter registration is not the only example.

Noncitizens occasionally receive jury summonses because their names are drawn from driver’s license records, voter registration databases, or other state records that incorrectly identify them as eligible for jury service.

Receiving a jury summons does not necessarily mean an individual is legally qualified to serve. However, recipients might assume that because the notice came from a government agency, they are expected — or even required — to comply. Others may disregard the summons without understanding the procedures for requesting disqualification.

In some cases, individuals do not consult immigration counsel because they view the matter as a routine administrative issue rather than one with potential immigration implications.

These examples illustrate how disconnected government systems might create confusion for individuals who are attempting to comply with official government instructions.

Immigration Consequences May Be Significant

The immigration consequences of erroneous voter registration, voting by a noncitizen, or falsely claiming U.S. citizenship can be severe.

False Claims to US Citizenship

One of the most significant concerns is whether an individual is found to have falsely represented himself or herself to be a U.S. citizen for a purpose or benefit under federal or state law.

INA § 212(a)(6)(C)(ii) renders inadmissible any noncitizen who falsely represents himself or herself to be a U.S. citizen for any purpose or benefit under the INA or any federal or state law. A corresponding ground of deportability appears in INA § 237(a)(3)(D).

Unlike other immigration violations, a false claim to U.S. citizenship often carries permanent immigration consequences, and for some individuals there is no general waiver available.

Whether a false claim occurred depends on the specific facts, including what representations were made, what documents were signed, and whether the statutory elements have been satisfied. Even where an individual acted without fraudulent intent or relied on a government error, the issue may still require careful legal analysis.

Voting by a Noncitizen

Federal immigration law separately addresses unlawful voting.

INA § 237(a)(6) provides that a noncitizen who has voted in violation of any federal, state, or local constitutional provision, statute, ordinance, or regulation is removable.

In addition, voter registration or unlawful voting may become relevant during applications for naturalization, where USCIS evaluates whether an applicant has established the required good moral character under INA §§ 101(f) and 316(a).

Whether these provisions ultimately apply depends upon the specific facts, the applicable federal and state laws, and the statutory requirements governing each ground of inadmissibility or removability. Every case requires an individualized legal analysis.

These Issues May Surface Years Later

One of the most challenging aspects of these cases is timing.

The issue might not arise until years after the original DMV visit or receipt of a government notice. It may first be identified during:

  • A naturalization interview;
  • An adjustment of status application;
  • Consular visa processing;
  • Removal proceedings; or
  • Another immigration adjudication involving a review of the individual’s history.

By then, records may be difficult to obtain, memories may have faded, and reconstructing the circumstances surrounding the original event can be challenging.

Government Error Does Not End the Analysis

The fact that a government agency made the initial mistake does not necessarily resolve the immigration analysis.

Federal immigration authorities may still examine:

  • What representations were made;
  • What documents were signed;
  • Whether the individual ultimately registered or voted;
  • Whether the statutory requirements have been met; and
  • Whether any statutory exceptions or defenses apply.

USCIS may review voter registration records, DMV documentation, signed applications, and other evidence when adjudicating immigration benefits. As a result, an administrative error that initially appeared inconsequential may become the subject of detailed scrutiny years later.

Each situation must therefore be evaluated on its own facts and under the applicable provisions of the INA.

Practical Considerations

Noncitizens may wish to exercise particular caution when interacting with state agencies. They should consider:

  • Carefully reviewing all documents before signing them, even if they appear to be routine DMV paperwork.
  • Avoiding assumptions about eligibility for rights or benefits reserved for U.S. citizens simply because it is offered or processed by a government employee.
  • Asking for clarification or an interpreter before signing documents that reference citizenship or voter registration if English is not their primary language.
  • Promptly contacting the appropriate election authority to determine their registration status and, where appropriate, request cancellation if they unexpectedly receive voter registration cards.
  • Following the court’s procedures for notifying it that they are not eligible to serve if they receive jury summons.
  • Consulting experienced immigration counsel before taking action if they receive any government notice involving voting, jury service, or another right or obligation that may depend upon U.S. citizenship. What appears to be a routine administrative matter may carry significant immigration consequences.

A Need for Better Coordination

These situations underscore the challenges that arise when state administrative systems and the federal immigration system operate independently.

Greater coordination between federal and state agencies, improved training for government employees, clearer guidance regarding citizenship verification, and increased public education may help prevent administrative errors from evolving into significant immigration issues years later.

Until greater safeguards are in place, noncitizens should recognize that even routine interactions with state agencies may have important immigration implications. Careful review of government forms, an understanding of eligibility requirements, and timely legal advice might help avoid unintended consequences that may not become apparent until much later in the immigration process.

For immigration practitioners, these cases serve as an important reminder that a seemingly minor administrative error today may become a complex legal issue years later. As immigration enforcement and benefit adjudications continue to rely on information collected across multiple levels of government, ensuring that individuals understand the distinction between what a state agency permits and what federal immigration law allows has never been more important.

When USCIS issued its May 21 memorandum emphasizing consular processing as the preferred pathway for many intending immigrants seeking permanent residence, the immigration community began raising questions. Would adjustment of status (AOS) applications become more difficult to approve? Would USCIS begin issuing widespread requests for evidence (RFEs) challenging applicants’ eligibility to adjust status in the United States? Would employment authorization and travel documents be affected? Would foreign nationals already pursuing AOS face increased scrutiny at interviews?

Now two weeks later, while it remains too early to draw definitive conclusions, implementation so far has been more measured than many initially anticipated. As is often the case with major immigration policy announcements, the practical impact of a memorandum depends not only on the language of the policy itself but also on how adjudicators interpret and apply that guidance in individual cases. Patterns are beginning to emerge, though the type of widespread disruption some stakeholders anticipated has not yet materialized. For a discussion of the memorandum, stream GT’s Immigration Insights Podcast Episode 25.

A Brief Reminder: What Did the Memorandum Do?

The memorandum signaled USCIS’s preference that many intending immigrants pursue immigrant visa processing abroad through U.S. consulates rather than AOS from within the United States. For decades, AOS has served as a critical pathway allowing eligible foreign nationals already present in the United States to complete the permanent residence process without departing the country. The memorandum raised concerns because it appeared to encourage greater scrutiny of adjustment filings and potentially shift adjudicative discretion toward consular processing in certain circumstances. Because AOS offers significant practical advantages – including the ability to remain in the United States while a case is pending, obtain employment authorization, and avoid many uncertainties associated with overseas visa processing – the memorandum generated concern among employers, foreign nationals, and immigration practitioners.

What Are We Seeing So Far?

While every case is unique, several trends have emerged during the first two weeks following issuance of the memorandum.[1]

Adjustment Applications Continue to Be Approved

Many AOS applications filed before the memorandum was issued continue to be approved, including for applicants in valid F-1, H-1B, and L-1 status. To date, there has been no indication of a blanket slowdown or freeze affecting adjustment applications that were already pending when the memorandum was released.

Employment Authorization and Travel Documents Continue Moving Forward

There are continued approvals of employment authorization documents (EADs) and advance parole (AP) applications filed in connection with AOS cases.

This is significant for applicants relying on adjustment-based work authorization or travel permission while awaiting a decision on their green card applications.

Adjustment Interviews Continue

Adjustment interviews at local USCIS field offices are continuing without apparent interruption. There is variation in how officers appear to be approaching the memorandum. In some interviews, applicants have reported that the memorandum was not discussed at all, with officers focusing on traditional adjustment issues such as admissibility, maintenance of status, employment history, family relationships, and application accuracy. In other interviews, applicants have reported being asked why they chose AOS rather than consular processing, a line of questioning consistent with the language and policy objectives reflected in the memorandum. At this stage, these questions may be exploratory rather than outcome-determinative. The fact that some officers are raising the issue suggests that field offices are aware of the guidance and may be incorporating it into interview practices.

Limited Reports of Requests for Evidence

One concern following the memorandum was whether USCIS would begin issuing RFEs requiring applicants to justify why AOS is appropriate in lieu of consular processing. While practitioners around the country have reported receiving such RFEs in some cases, our office has not yet received any RFEs specifically seeking that explanation. The relatively short period since the memorandum’s issuance makes it difficult to assess whether such requests will become more common. Historically, USCIS implementation of major policy changes often varies by field office, service center, and adjudicator before more consistent practices emerge. As additional cases move through the system, we may gain greater insight into whether these RFEs represent isolated examples or the beginning of a broader adjudication trend.

No Significant Travel Issues Reported

Travel concerns were another area of uncertainty following the memorandum. Many applicants questioned whether travel on AP or travel in H-1B and L-1 status could become more complicated if USCIS adopted a stronger preference for consular processing. To date, we have not received reports from clients indicating unusual travel-related complications attributable to the memorandum.

A Growing Interest in Preserving Consular Processing Options

One practical response is increased interest in maintaining flexibility. Some individuals with approved immigrant petitions are electing to file Form I-824, Application for Action on an Approved Application or Petition, to preserve the possibility of consular processing should they decide – or be required – to pursue that route in the future. While filing Form I-824 is not necessary or advisable in every case, it reflects a broader trend among applicants seeking to keep multiple options available while the long-term impact of the memorandum becomes clearer. For certain individuals, particularly those with international travel obligations, complex immigration histories, or concerns about future policy developments, preserving optionality may be a prudent strategic consideration.

Considerations for Employers and Foreign Nationals

The memorandum is significant, but the implementation data available today does not support the conclusion that AOS is no longer viable or that applicants should automatically abandon pending or planned adjustment filings in favor of consular processing.

Each case warrants careful evaluation on its own merits. Factors such as immigration status, travel needs, country of citizenship, visa availability, processing times, family circumstances, and long-term immigration objectives should continue to drive strategic decision-making. For many applicants, AOS may remain the preferred and most practical path to permanent residence. For others, preserving consular processing as a backup option may provide additional flexibility. Immigration strategy is most effective when tailored to the individual circumstances of the applicant.

Looking Ahead

The first two weeks following the memorandum have provided some initial data points, but many questions remain unanswered. As additional cases move through interviews and adjudication, we expect to gain greater visibility into how field offices and service centers interpret the guidance. There may also be further policy clarification from USCIS, additional stakeholder engagement, new adjudication trends, and potentially litigation that could affect implementation. For now, AOS cases continue to move forward – applications are being approved, interviews are being conducted, employment authorization and travel documents continue to be issued.

[1] Disclaimer: The observations discussed in this blog post are based on our firm’s cases and discussions with colleagues throughout the immigration bar during the first two weeks following issuance of the memorandum. These observations are anecdotal in nature, may not be representative of all USCIS offices, adjudicators, or case types, and should not be viewed as predictive of any individual case outcome.

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.