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  • 26Sep

    Client Alert: U.S. Department of Homeland Security Proposes New Weighted H-1B Cap Selection Process Favoring Higher Wage Levels

    H-1B Visa News Comments Off on Client Alert: U.S. Department of Homeland Security Proposes New Weighted H-1B Cap Selection Process Favoring Higher Wage Levels

    On September 24, 2025, the Department of Homeland Security (DHS) published a proposed rule that would significantly alter the annual cap-subject H-1B lottery selection process, replacing the current randomized lottery with a wage-based weighted system. This change would give priority to higher-paid workers in the annual allocation of H-1B visas under the cap.

    If the proposed rule becomes a final rule, it would prioritize the selection of H-1B cap-subject registrations based on the wage level offered to the prospective H-1B candidate, assigning more weight to those offered higher wage levels as defined by the Department of Labor’s (DOL) Occupational Employment and Wage Statistics (OEWS). Under the proposed rule, beneficiaries offered a position at the highest wage level (Level 4) would receive four entries in the lottery pool, whereas those offered a position at a normal entry-level wage (Level 1) would receive only one.

    Clearly, the proposed rule would unfairly advantage the “hyperscaler” technology companies at the epicenter of the AI boom (e.g.; Amazon, Tesla, Google, Microsoft) who can offer higher level wages to their H-1B candidates, while distinctly disadvantaging early-career professionals, recent graduates, and employers in other industries. Moreover, the proposed rule relies on DOL wage levels as a proxy for skill, which may not accurately reflect the qualifications of foreign workers or the complexity of the proffered position. Additionally, the proposed rule would impose new obligations on petitioning employers during the H-1B registration process which do not exist under the current lottery system. For example, sponsoring employers would be required to certify the occupational code, wage level, and work location for each H-1B cap registration. In cases where a single beneficiary has multiple registrations from separate petitioning entities, the lowest wage level among all registrations would be used to determine the candidate’s selection weighting thus, introducing variables in the process which are outside of any one petitioning employer’s control.

    For key details of the proposed H-1B Cap Selection change click here.

    If you have any questions please contact: Anthony F. Siliato, Scott R. Malyk, or Stacey A. Simon.

     

  • 23Sep

    Client Alert: Updated Guidance on the H-1B Proclamation and Recent Developments

    H-1B Visa News Comments Off on Client Alert: Updated Guidance on the H-1B Proclamation and Recent Developments

    As you are aware, on September 19, 2025, the President signed a Proclamation requiring a $100,000 fee to accompany any new H-1B visa petition.

    Since the Proclamation’s release, federal agencies including U.S. Citizenship and Immigration Services (USCIS), U.S. Customs and Border Protection (CBP), and the U.S. Department of State (DOS) have issued memoranda and guidance.

    Below are the key updates based on guidance that was released after the initial Proclamation:

    Filing Fee for NEW Petitions:

    A $100,000 fee must accompany any new H-1B visa petition filed after 12:01 a.m. EDT on September 21, 2025. This includes submissions for the 2027 H-1B lottery and all other new filings thereafter.

    Agency Memoranda and Guidance Appears to Limit the Applicability of the Proclamation as follows:

    • The Proclamation, including the $100,000 fee, does not apply to H-1B petitions submitted before 12:01 a.m. EDT on September 21, 2025, whether pending or approved.
    • The Proclamation, including the $100,000 fee, does not apply to applications for H-1B visa issuance at U.S. Consulates, provided the H-1B petition was filed prior to 12:01 a.m. EDT on September 21, 2025.
    • While there is no official guidance, based on anecdotal evidence, it appears that the Proclamation, including the $100,000 fee, does not apply to H-1B extensions filed on behalf of beneficiaries who are in the United States.

     Implementation Challenges & Potential Risks

    • While agencies have issued such initial guidance, the guidance has been confusing, contradictory and incomplete.
    • Without more coherent and comprehensive guidance, our advice remains that H-1B beneficiaries should avoid international travel wherever possible, as we believe the inconsistency in agency guidance is likely to result in delays and confusion at Ports of Entry (for admission to the U.S.) and U.S. Consular Posts (for issuance of H-1B visas).
    • Additional agency guidance and instructions are expected in the coming days and we will continue to provide updates as they become available, including guidance as to whether the $100,000 fee applies to H-1B extensions, amendments or changes of employer filed on behalf of beneficiaries who are in the United States.

    NEW DOL INITIATIVE – “Project Firewall” – New H-1B Enforcement Initiative

    Separate from the Proclamation, the Department of Labor has initiated Project Firewall, targeting H-1B compliance.

    Key takeaways include:

    • Direct Oversight by DOL: The Secretary of Labor will certify all investigations into suspected violations.
    • Penalties: Employers found noncompliant may face back wage payments, civil penalties, or disqualification from the H-1B program.
    • Interagency Coordination: DOL will collaborate with DOJ, EEOC, and USCIS to ensure enforcement and eliminate discrimination.

    Employers should immediately review internal H-1B procedures to ensure full compliance with wage and worksite obligations, including Public Access File recordkeeping as required under federal law.

    Additional regulatory changes are expected, including:

      • DOL rulemaking to raise prevailing wage levels and restrict program abuse.
      • DHS proposals to prioritize H-1B lottery selection for high-skilled, high-wage applicants over lower-wage tiers

    Conclusion

    The Proclamation, along with the DOL’s increased enforcement effort, marks a significant shift in how the federal government is approaching the H-1B visa program. Employers are encouraged to act now to ensure their compliance practices, communicate on-going updates to their foreign national employees, and prepare for additional policy changes in the months ahead.

    We will continue monitoring the situation and provide updates as information becomes available.

    If you have any questions please contact: Anthony F. Siliato, Scott R. Malyk, or Stacey A. Simon.

  • 21Sep

    Client Alert: Travel Ban on H-1B Non-Immigrants Takes Effect on September 21, 2025

    H-1B Visa News Comments Off on Client Alert: Travel Ban on H-1B Non-Immigrants Takes Effect on September 21, 2025

    As you may be aware, last night the Trump Administration issued a Proclamation that will impact H-1B workers starting this Sunday, September 21 at 12:01AM.

    While we do not yet have much information about how this will be implemented, here are some tips on how to deal with the fallout of the proclamation in the meantime;

    • H-1B-sponsored employees who are currently outside of the United States should make all efforts possible to return to the U.S. today, before the effective date of the proclamation [12:01 a.m. EDT Sunday, September 21, 2025].
    • Travel outside of the U.S. for visa processing/renewals will be impacted so H-1B workers should refrain from all international travel until the implementation of the proclamation is further clarified.

    We are awaiting further guidance as to whether the $100,000 fee will apply to those who already have an H-1B approval or who have an H-1B petition pending. According to unofficial additional guidance, the $100,000 additional fee would only apply to new H-1B filings under next year’s H-1B cap registration lottery. There may be exemptions for H-1B workers whose work is in the national interest but this is not clearly defined.

    It is important to note that Congress, not the executive branch, has the power to set visa fees. By imposing an additional $100,000 visa fee, the Proclamation bypasses Congress’ exclusive authority to regulate immigration fees.

    For that reason, legal challenges are already being prepared but it is impossible to predict what the Courts will do.

    In short, there is good reason to expect strong legal opposition to the Proclamation and possible court orders including injunctions limiting or halting enforcement.

    We will continue to provide you with additional guidance and updates as we receive more information.

    If you have any questions please contact: Anthony F. Siliato, Scott R. Malyk, or Stacey A. Simon.

  • 10Sep

    Client Alert: New Department of State Policy Update Requires Adjudication of Nonimmigrant Visa Applications in Applicant’s Country of Nationality or Residence

    Department of State Comments Off on Client Alert: New Department of State Policy Update Requires Adjudication of Nonimmigrant Visa Applications in Applicant’s Country of Nationality or Residence

    Effective September 6, 2025, the U.S. Department of State released a new policy regarding the adjudication of nonimmigrant visa applications for third country nationals (TCNs). TCNs are individuals who apply for a U.S. visa in a country that is neither their country of nationality nor their country of legal permanent residence. See full details here.

    If you have any questions please contact: Anthony F. Siliato, Scott R. Malyk, or Stacey A. Simon.

  • 01Aug

    HR/Client Alert: State Department Eliminating Most Interview Waiver (Dropbox) Appointments, Effective September 2, 2025

    Consular Processing Updates Comments Off on HR/Client Alert: State Department Eliminating Most Interview Waiver (Dropbox) Appointments, Effective September 2, 2025

    1.  Overview of Policy Change
    Effective September 2, 2025, the U.S. Department of State (DOS) will significantly narrow the categories of nonimmigrant visa applicants who will be eligible for the visa interview waiver program (more commonly referred to as “Dropbox”).

    Going forward, nearly all temporary, nonimmigrant visa applicants (H-1B, L-1, TN-2, F-1, E-3, J-1, E-2, O-1) — including children under the age of 14 and adults over the age of 79 — will be required to attend in‑person visa stamping interviews at a U.S. Consulate, with few exceptions.

    2. Who May Still Qualify for an Interview Waiver
    Only the following applicant types may potentially waive the in-person consular interview:

    Diplomatic and official visas, including classifications A‑1, A‑2, C‑3 (excluding personal employees/servants), G‑1 through G‑4, NATO‑1 through NATO‑6, and TECRO E‑1.

    Certain short‑term visitor visa renewals, specifically applicants for full‑validity B‑1, B‑2, or combined B‑1/B‑2 visas, or Border Crossing Card/Foil renewals (for Mexican nationals) within 12 months of prior visa expiration or while still valid, but only if the applicant was aged 18 or older at the time of issuance of the prior visa, applied for in the foreign national’s country of nationality or legal residence, with no prior visa refusals (unless formally overcome/waived) and no apparent or potential ineligibility.

    3. Significant Changes Compared to Prior Policy
    This announcement supersedes the February 18, 2025 interview waiver guidance, further restricting interview waiver eligibility beyond previous restrictions from 48‑month to a 12‑month renewal window.

    4. Implications for Sponsored Employees
    If your employee already has a Dropbox appointment scheduled for after September 1, 2025, we strongly recommend he/she contacts the consular post immediately to reschedule or convert the Dropbox appointment to an in-person appointment. That your employee has a Dropbox appointment scheduled is in no way binding on DOS – those appointments, if not converted, will be cancelled and, thus, should not be relied upon.

    Your sponsored employees should also anticipate that demand for in-person visa appointments will rise sharply, particularly in work and student visa categories and, thus, interview wait times are projected to lengthen substantially.

    Those without appointments but who are planning international travel for visa renewals in the near-term: should plan now for in-person stamping procedures abroad. To avoid delays or disruptions to travel plans, employees should expedite the scheduling process and prepare for in-person interview scheduling, including gathering the appropriate documentation and making sure to secure an in-person appointment before finalizing any travel plans.

    5. Recommended Action Steps
    Sponsored employees should review and familiarize themselves with the steps for securing an in-person visa interview processing at their respective consular post.

    Encourage your employees to initiate DS‑160 submissions, pay MRV fees, and schedule interviews well in advance of planned travel. As noted above, the conversion of existing Dropbox appointments into in-person interviews, will cause significantly higher competition for available appointment slots and longer lead times to secure a visa interview.

    Encourage your sponsored employees to monitor Embassy/US Consulate websites for updates on appointment availability and local procedures. If international travel is not necessary, conservatively, it may be sound advice to hold off on travel plans until the cycle of Dropbox cancellations works its way through the system.

    If you have any questions please contact: Anthony F. Siliato, Scott R. Malyk, or Stacey A. Simon.

  • 01Jul

    Navigating Unprecedented Changes to Immigration Law | An Interview with Scott Malyk

    Worksite Enforcement Comments Off on Navigating Unprecedented Changes to Immigration Law | An Interview with Scott Malyk

    ICE is leveraging unprecedented enforcement tactics and IRS data access. In a timely and informative interview with Raise The Bar Media, immigration attorney Scott Malyk says businesses—and the lawyers who advise them—face rising legal risks that demand specialized counsel and caution.

    Two decades ago, attorney Scott Malyk shifted his focus from business litigation to immigration law. Now, as a senior partner at Meyner and Landis LLP, and the go-to advisor for businesses who need counsel on immigration issues, he’s changing things up again as this area of law undergoes a complete overhaul.

    Were most of the clients you work with prepared for President Trump’s campaigned-upon changes to the immigration system?

    No. The uptick in enforcement actions by ICE is unprecedented.

    To give you some statistics, in Q1 2025, ICE reported it had served more than 5,200 Notices of Inspection (NOIs) as a part of a two-phase nationwide operation—worksite compliance followed by worksite enforcement actions. This two-phase initiative is what is most different today—worksite enforcement initiatives don’t end with I-9 compliance (i.e. I-9 inspections followed by civil fines and/or debarment referrals).

    Today, ICE is seeking to utilize intelligence gathered from I-9 audits to conduct enforcement actions, including administrative arrests of undocumented employees, while threatening criminal liability against the employer for “unlawful employment of unauthorized workers” and “harboring aliens” under 8 U.S.C. Section 1324, the latter of which we have never seen before.

    Click here to read the full Q&A interview.

  • 19Apr

    Client Alert: USCIS Alien Registration Requirement

    Uncategorized, USCIS Policy Updates Comments Off on Client Alert: USCIS Alien Registration Requirement

    Effective April 11, 2025, certain foreign nationals who are not already considered registered (as described below) are required to register with U.S. Citizenship and Immigration Services (USCIS) and undergo biometrics collection and a background check. Such registration is in furtherance of the Executive Order issued on January 20, 2025 by President Trump entitled “Protecting the American People Against Invasion,” which directed the Department of Homeland Security (DHS) to ensure that all foreign nationals comply with their duty to register with the government, with the failure to comply being treated as a civil and criminal offense. The DHS issued an Interim Final Rule (IFR) on March 12, 2025 outlining how the registration requirement would be implemented through an online system administered by USCIS.  See full Alien Registration Requirement details here.

    If you have any questions please contact: Anthony F. Siliato, Scott R. Malyk, or Stacey A. Simon.

  • 17Apr

    Client Alert: Immigration Travel and Registration Checklists

    Uncategorized Comments Off on Client Alert: Immigration Travel and Registration Checklists

    A.       TRAVEL – INTERNATIONALLY

    • Valid Passport
    • Valid Visa or I-94 record, when applicable. https://i94.cbp.dhs. gov/home Note that, if traveling to Canada or Mexico for no more than 30 days, you may travel with an expired visa and valid I-94 record. NOTE: Citizens of certain countries (e.g., Indian nationals) need a Canadian visitor visa to visit Canada. Indian nationals may visit Mexico with a valid U.S. visa.
    • Valid I-797 USCIS approval notice. Note the bottom of the form may include your I-94 admission record. If subject to an extension or amendment, copy of USCIS receipt notice. NOTE: For M&L clients, such receipt notice is available on M&L’s online portal.
    • Current employment verification letter from employer confirming authorized work title, location, and period of employment with employer. Such letter should be requested from your HR representative. If HR has questions, they may contact us.
    • Advise employer contact of return date and port of entry. A U.S. Customs and Border Protection officer may need to speak with the employer to confirm information about the employment. If you are applying for a new visa at a U.S. consular post abroad, again, a consular officer may call or email the company contact to confirm information. The consular officer will rely on the contact information included on the DS-160 form submitted to the consular post electronically to apply for the visa.
    • A failure to file a change of address AR-11 with USCIS within ten days of an address change in the United States may result in a fine, imprisonment and/or removal from the United States. Failure to comply could also jeopardize your ability to obtain a future visa or other immigration benefits.
    • Always tell the truth to a CBP or consular official.
    • If you have been arrested, that information may result in a refusal of a visa or entry to the U.S., depending on the circumstances.
    • When you are at a port of entry, if the CBP officer is questioning your eligibility for admission to the U.S. in your current status or a new status for which you are applying and it appears likely that he/she may render a decision to refuse your request for entry, you should politely request the Officer to speak with a supervisor. There is a supervisor on duty at all times at every U.S. Port of Entry. The other option you may want to consider is requesting a withdrawal of your application for admission in order to obtain whatever supplemental information the CBP officer may require.
    • Remember that social media postings are being reviewed by CBP, the Department of State, and U.S. Citizenship and Immigration Services (USCIS). Posts that may compromise a “compelling foreign policy interest” are being reviewed intensively.

    B. TRAVEL – DOMESTICALLY

    • Due to the enforcement of the registration rules, it is critical that foreign nationals “carry” their qualifying registration documents while in the U.S. Failure to carry your documents is a Class B federal misdemeanor ($5,000.00 fine/30 days jail). This requirement applies to those 18 years of age or older.
    • Usually, the registration requirement will be satisfied by a valid I-94, which is downloaded from the CBP website or your valid visa issued at a U.S. consular post. The other typical option for legal permanent residents is, of course, your legal permanent resident card (green card).
    • For minors, there is a re-registration requirement for those in the U.S. within 30 days of when they turn 14.
    • A separate requirement is the ability to prove your lawful status in the U.S.  This requirement is normally satisfied with your registration documents; however, if you have a pending extension application with USCIS and your I-94 is about to expire or has expired, carry a copy of USCIS receipt notice.
    • Remember that any request for admission to the U.S. allows a CBP officer to review your nonimmigrant visa status or legal permanent resident status.
    • It is possible to be determined to be inadmissible to the U.S., to have your visa revoked, or to lose permanent residence based on criminal arrests.
    • A failure to file a change of address AR-11 with USCIS within ten days of an address change in the United States may result in a fine, imprisonment and/or removal from the United States. Failure to comply could also jeopardize your ability to obtain a future visa or other immigration benefits.

    If you have any questions please contact: Anthony F. Siliato, Scott R. Malyk, or Stacey A. Simon.

     

  • 03Mar

    Client Alert: USCIS Announces Alien Registration Requirement

    USCIS Policy Updates Comments Off on Client Alert: USCIS Announces Alien Registration Requirement

    Beginning February 25, 2025, foreign nationals who are not already deemed registered (as described below) are required to register with USCIS. Such registration is in furtherance of the Executive Order issued on January 20, 2025 by President Trump entitled “Protecting the American People Against Invasion,” which directed the Department of Homeland Security (DHS) to ensure that all foreign nationals comply with their duty to register with the government, with the failure to comply being treated as a civil and criminal offense.

    Who Must Be Registered

    Citing the Immigration and Nationality Act (INA) (8 U.S.C.1302), which has been dormant and unenforced for decades, the Executive Order requires that all foreign nationals 14 years of age or older who were not fingerprinted or registered when applying for a U.S. visa and who remain in the United States for 30 days or longer, must apply for registration and fingerprinting. Similarly, parents and guardians must ensure that their children below the age of 14 are registered. Within 30 days of reaching their 14th birthday, the previously registered alien child must re-register and be fingerprinted.

    Once a foreign national has registered and appeared for fingerprinting (unless waived), DHS will issue evidence of registration, which foreign nationals over the age of 18 must carry and keep in their possession at all times. For the full Client Alert details click here.

    If you have any questions please contact: Anthony F. Siliato, Scott R. Malyk, or Stacey A. Simon.

  • 28Feb

    Client Alert: Department of State Mandates Denial of Immigrant and Nonimmigrant Visa Applications Listing Gender that is Inconsistent with Gender at Birth, Effecting Transgender Visa Applicants

    Uncategorized Comments Off on Client Alert: Department of State Mandates Denial of Immigrant and Nonimmigrant Visa Applications Listing Gender that is Inconsistent with Gender at Birth, Effecting Transgender Visa Applicants

    On February 24, 2025, the Secretary of State of the U.S. Department of State (“DOS”), Marco Rubio, issued a cable (the “Cable”) to all diplomatic and consular posts on the adjudication of visa applications for all transgender visa applicants, including athletes, whose gender on the application does not match their gender at birth. Entitled “Guidance for Visa Adjudicators on Executive Order 14201: ‘Keeping Men Out of Women’s Sports’”, the Cable mandates that all visa-issuing posts follow the guidance effective immediately in order to implement President Trump’s Executive Order (“EO”), “Keeping Men out of Women’s Sports.”

    While the Cable appears to be focused on preventing transgender athletes from traveling to the U.S. to compete in women’s sports, the Cable includes sections that are broadly phrased to effectively apply to all transgender visa applicants – not just transgender athletes. In pertinent part, the broad language of Section 6 of the Cable mandates:

    “[B]oth immigrant and nonimmigrant visa applications request that an applicant identify the sex as either male or female. Moreover, all visas must reflect an applicant’s sex at birth. If there is a discrepancy either in the applicant’s documents or in electronic consular records, or if other evidence casts reasonable doubt on the applicant’s sex, you should refuse the case under 221(g) and request additional evidence to demonstrate sex at birth. Typically, a timely-registered birth certificate with a sex marker will suffice for this purpose.”

    For the full Client Alert details click here. If you have any questions please contact: Anthony F. Siliato, Scott R. Malyk, or Stacey A. Simon.

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