We hope this newsletter finds you well. In this edition, we bring you important updates on various immigration matters. Please take a moment to review the following key highlights:
DHS May End “Duration of Status” for International Students and Exchange Visitors
The Department of Homeland Security (DHS) is considering a major change to the way many foreign students and exchange visitors are admitted into the United States. Currently, most F-1 students, J-1 exchange visitors, and certain foreign media representatives entering on I visas are admitted under “Duration of Status” (D/S), allowing them to remain in the country as long as they continue to comply with the terms of their visa program. Under the proposed policy, DHS may replace D/S admissions with fixed expiration dates on Form I-94 records, requiring individuals to request extensions through USCIS if they need additional time in the United States. If implemented, the change could create substantial new compliance obligations for students, schools, researchers, and employers. Foreign nationals may need to file extension applications more frequently, pay additional filing fees, and monitor their I-94 validity dates carefully to avoid falling out of status. Critics argue that the proposal could increase uncertainty for international students and discourage global talent from choosing the United States for education and research opportunities. Supporters of the proposal, however, believe the policy would allow the government to conduct more regular oversight of nonimmigrant visa holders and strengthen immigration enforcement measures.International Travel: A Summary Guide for F-1, OPT, CPT, H-1B Workers (Including Third-Party Placement) and Anyone with Pending Criminal Charges, Open Cases, or Prior Convictions Published by the Law Offices of Keshab Raj Seadie, P.C. | GreenCardMaker.com This article provides general information only and is not legal advice. Every traveler’s situation is unique. Before you book a ticket or board a flight, consult an experienced immigration attorney about your specific facts. Travel decisions made without individualized legal review can result in visa revocation, denial of reentry, removal proceedings, or permanent inadmissibility. Why This Article Matters: International travel has become one of the highest-risk activities a non-citizen can undertake. Under the current administration, we are seeing dramatically increased scrutiny at U.S. consulates abroad and at U.S. ports of entry, expanded use of secondary inspection, more aggressive use of the 5-year unlawful presence and misrepresentation bars, longer 221(g) administrative processing delays, and stricter enforcement of even decades-old criminal records. A trip that would have been routine three years ago may today result in a visa stamp denial, a year-long administrative processing hold, a finding of inadmissibility, or placement in expedited removal. The good news is that most travel problems are preventable with proper planning. The purpose of this article is to give a high-level summary of the issues each major nonimmigrant category should consider before traveling—and to flag the additional landmines for anyone with a pending criminal matter, an open case, or a past conviction. Part 1: F-1 Students: If you are in valid F-1 status and attending classes, international travel is generally permitted, but you must have all of the following before reentry: A valid, unexpired F-1 visa stamp in your passport (Canadians are visa-exempt). A Form I-20 signed by your Designated School Official (DSO) on page 2 within the last 12 months for travel during studies or within the last 6 months if you are on OPT. A passport valid for at least six months beyond your date of reentry. Proof of continued enrollment, financial support, and intent to return to your studies. The most common F-1 travel problems we see are traveling on an expired visa stamp and being unable to obtain a new one in time; long 221(g) administrative processing for students in STEM fields, particularly those associated with sensitive research, certain countries of birth, or institutions of concern; and DSO travel signatures that have lapsed. Students on a leave of absence, who have dropped below a full course load without authorization, or who have any disciplinary issues should not travel without first consulting counsel. A special caution applies to students from countries currently subject to travel restrictions or enhanced vetting. Even with a valid visa, you may be subject to extended administrative processing or denial of reentry. Check the most recent presidential proclamations and Department of State guidance before departure. Part 2: F-1 Students on OPT (Post-Completion or STEM Extension): Travel on OPT is permitted but is meaningfully riskier than travel during active study. To reenter the U.S. on OPT, you need: a valid F-1 visa stamp; a valid EAD card (Form I-766) for OPT; an I-20 endorsed for travel within the past 6 months by your DSO; a job offer letter or proof of current employment; recent pay stubs; and your passport. The most dangerous moment on OPT is the gap between filing the OPT extension (or STEM OPT) application and receiving the new EAD. We strongly recommend that you do not travel internationally while your OPT or STEM OPT application is pending. Customs and Border Protection (CBP) officers have broad discretion at the port of entry, and there have been numerous cases of OPT students being denied reentry because the officer determined that the student had no current work authorization to present. If you are on the 60-day grace period after OPT ends, do not travel. Once you depart the U.S. during the grace period, the grace period is generally considered forfeited, and you cannot reenter in F-1 status. For STEM OPT, additional scrutiny applies. CBP has been auditing STEM OPT employment closely—confirming the employer is E-Verify enrolled, that the I-983 Training Plan reflects bona fide training (not generic IT staffing), and that wages match the I-983. If your STEM OPT placement is at a third-party client site through a staffing company, expect questions and bring documentation showing the employer-employee relationship with the E-Verify employer, the I-983, and the actual nature of work performed. Unemployment limits remain strict: 90 days on standard OPT, 150 days cumulative on STEM OPT. Traveling while accruing unemployment days, or returning after exceeding the limit, can result in denial of reentry and a finding that you are out of status. Part 3: F-1 Students on CPT: Travel on valid CPT is generally permitted with the same documents as F-1 travel during studies, plus your CPT authorization page on the I-20 and an employment letter from the CPT employer. However, CPT travel carries elevated risk, particularly for “day-1 CPT” programs and graduate programs where CPT is used for the majority of enrollment. CBP officers have been increasingly skeptical of day-1 CPT arrangements, particularly when the school is in a different state from the CPT employer, when there is little or no in-person attendance, or when the CPT is full-time from the first term of a program. Officers have referred such travelers to secondary inspection, questioned the bona fides of enrollment, and in some cases denied admission with a finding that the F-1 status was being used primarily for employment rather than study. If you are on day-1 CPT or any CPT arrangement that could be characterized as unconventional, you should consult counsel and weigh the necessity of travel against the very real risk of being denied reentry. Carry comprehensive documentation: full transcripts, syllabi, attendance records, proof of physical class attendance, the CPT employer’s offer letter, and pay records. Part 4: H-1B Workers (Standard Employer-Sited): H-1B travel is generally permitted with a valid H-1B visa stamp (or appointment to obtain one abroad); the original I-797 approval notice; the most recent three pay stubs; an employment verification letter; a copy of the LCA; and a passport valid for the duration of the intended stay plus six months. The major issues we see for H-1B travelers today include: Visa stamp expiration combined with consular delays. Many H-1B holders are working for years on a valid I-797 with an expired visa stamp. As soon as you depart the U.S., you cannot reenter without a new stamp. Wait times for visa appointments in India, China, and other high-volume posts have improved but remain unpredictable, and 221(g) administrative processing can extend your stay abroad by weeks or months. Many of our clients have been stranded outside the U.S. for 2 to 6 months, losing payroll and in some cases losing their employment. Travel during a pending H-1B amendment or extension. If you have a pending H-1B extension or amendment with USCIS, traveling abroad and reentering on the prior approval is sometimes possible but legally complex. In some cases, departure can be construed as abandoning the pending petition. Always consult counsel before traveling with anything pending. Domicile and nonimmigrant intent issues. Although H-1B is dual-intent, consular officers routinely scrutinize ties to the home country, particularly for applicants who have been in the U.S. for 8+ years, have a pending I-140, or have a filed I-485. Be prepared to articulate your current employment and your nonimmigrant purpose and to present your underlying immigrant petition documentation if asked. Country-of-birth and country-of-citizenship issues. Applicants born in or citizens of certain countries are subject to enhanced security advisory opinions (SAOs), Mantis checks for technology fields, and Donkey/Condor checks. These can add 30 to 180+ days. If your work involves any export-controlled technology, dual-use research, semiconductors, AI/ML, biotechnology, or sensitive infrastructure, plan for delays. Part 5: H-1B Workers Placed at Third-Party Client Sites: If you work for a staffing company, consulting firm, or IT services vendor and are placed at a third-party client site, your travel risk is materially higher than a direct-hire H-1B. Consular officers and CBP officers have been intensively scrutinizing these arrangements following the 2018 Matter of [Itserve] litigation and the subsequent regulatory and adjudication shifts. Before traveling, gather and carry your current client letter (dated within 30 days of travel). confirming you are working at the client site in the role described in the H-1B petition; the entire chain of vendor agreements (MSA, SOW, work order) connecting your employer to the end client; recent pay stubs showing wages at or above the LCA wage; the LCA covering the current worksite; your I-797 and the full H-1B petition with all exhibits; and proof of the employer-employee relationship (performance reviews, supervision, benefits). Consular officers are now routinely asking the following: Who supervises your day-to-day work? Who controls the deliverables? What is the duration of the current project? Has the project location changed? Inconsistent answers can result in a 221(g) refusal or, in worst cases, 212(a)(6)(C)(i) misrepresentation findings if the consul believes prior representations to USCIS were inaccurate. If you have changed worksites without an amendment, if your end-client project ended and you are “on the bench,” or if your LCA does not match your actual worksite, do not travel. Speak with counsel first. These issues are correctable while you are inside the U.S. but can become catastrophic if discovered at a consulate or port of entry. A particularly dangerous scenario is the “benched” H-1B worker who travels abroad. If you have not been receiving proper LCA wages while on the bench, the consular officer or CBP may treat this as a status violation. We have seen clients placed in expedited removal at the airport on this basis. Part 6: Travel With Pending Criminal Charges, Open Cases, or Prior Convictions: This is the area where we see the most permanent, life-altering travel mistakes. The fundamental rule: a non-citizen with any criminal history — even a dismissed case, even a sealed record, even a juvenile adjudication, even an arrest without conviction — must consult an immigration attorney before traveling internationally. The U.S. immigration system’s treatment of crimes is governed by the Immigration and Nationality Act, not by state criminal law. A conviction that is “expunged” or “sealed” under state law often still counts as a conviction for immigration purposes under INA § 101(a)(48)(A). A “deferred adjudication,” “ARD,” “diversion,” or “withhold of adjudication” often counts as a conviction even if your state treats it as a non-conviction. A dismissed charge with no admission of guilt may still trigger inadmissibility questions if there was an arrest record or any sworn admission to the elements of the offense. The categories of immigration-relevant crimes:
- Crimes Involving Moral Turpitude (CIMTs) — including theft, fraud, assault with intent, and many domestic violence offenses — can render a non-citizen inadmissible under INA § 212(a)(2)(A)(i)(I). The petty offense exception is narrow and specific.
- Controlled substance offenses — including any conviction or admission relating to a controlled substance (with a very narrow exception for a single offense of simple possession of 30 grams or less of marijuana) — are inadmissibility grounds under INA § 212(a)(2)(A)(i)(II). Marijuana convictions remain federal inadmissibility grounds even where the state has legalized recreational use, and even admission of past marijuana use to a CBP officer or consular officer (without any conviction) can trigger inadmissibility.
- Aggravated felonies under INA § 101(a)(43) — a defined list including drug trafficking, certain theft and fraud offenses with sentences of one year or more, certain firearms offenses, and others — carry the most severe consequences and generally bar most forms of relief.
- Domestic violence, stalking, child abuse, and violation of protection orders carry deportability grounds under INA § 237(a)(2)(E) that can be triggered by very minor offenses.
- Do not assume that because you reentered the U.S. once with a record, you can do so again. CBP databases are continuously updated, and an officer with more time and more attention can reach a different conclusion than the officer who admitted you previously.
- Do not apply for a visa stamp abroad if you have an arrest record without first obtaining your complete certified court disposition for every arrest, your FBI fingerprint background check (Identity History Summary), and a written legal opinion from an immigration attorney analyzing each arrest under the INA grounds of inadmissibility.
- Do not lie or omit information on a DS-160 visa application or to a CBP officer. The questions about prior arrests, charges, and detentions are broad and apply even to charges that were dismissed. A misrepresentation finding under INA § 212(a)(6)(C)(i) is a permanent bar that follows you for life. We have seen otherwise approvable clients permanently barred for failing to disclose a 15-year-old dismissed shoplifting case.
- If you have a pending criminal case in the U.S., do not travel internationally. Departure can be construed as a flight from prosecution, can violate bail conditions, can result in a bench warrant, and can result in an inability to reenter even if the case is eventually dismissed. Resolve the case first, with the resolution structured (where possible) to minimize immigration consequences.
- If you have an open immigration case—pending I-485, pending I-589 asylum, pending cancellation of removal, or pending naturalization with criminal issues—international travel can have unique consequences ranging from abandonment of the application to triggering inadmissibility on reentry. Specific advance planning is essential.
The 212(a)(9) unlawful presence bars:
- Anyone who has accrued more than 180 days of unlawful presence and then departs the U.S. triggers a 3-year bar to reentry; more than one year of unlawful presence triggers a 10-year bar. Some individuals are surprised to learn they have unlawful presence (for example, students who were terminated from SEVIS without realizing it, or workers whose H-1B was revoked retroactively). Departure can convert a fixable problem into a 3- or 10-year exile.
- State expungements, sealings, and “set asides” generally do not erase the conviction for immigration purposes. The only relief that fully removes a conviction for immigration purposes is a vacatur on substantive or procedural constitutional grounds, not a vacatur for “rehabilitation” or “immigration hardship.” If you have an old conviction you believe was cleared, obtain the certified disposition before traveling—do not rely on memory or on what your state criminal attorney told you 15 years ago.
Marriage-Based Green Cards and Fiancée Visas for U.S. Citizens
For many families, marriage to a U.S. citizen provides one of the fastest and most direct paths to permanent residence in the United States. U.S. immigration law allows both spouses and fiancées of U.S. citizens to immigrate legally through well-established processes, but careful preparation and proper documentation are critical to success. A U.S. citizen may sponsor a husband or wife for a marriage-based green card by filing Form I-130. If the foreign national spouse is already in the United States and entered legally, they may often file for adjustment of status through Form I-485 at the same time, allowing them to apply for work authorization and travel permission while the case is pending. If the spouse is outside the United States, the case generally proceeds through consular processing at a U.S. Embassy or Consulate abroad. USCIS and the Department of State closely review these applications to confirm that the marriage is genuine and not entered into solely for immigration purposes. Couples should therefore provide substantial evidence of their bona fide relationship, including joint financial records, photographs, communication history, travel records, leases, insurance policies, and affidavits from family and friends. For engaged couples, the K-1 fiancée visa offers another important option. A U.S. citizen may file a petition for a foreign fiancée if both parties are legally free to marry and have generally met in person within the last two years. Once the K-1 visa is approved and the foreign fiancée enters the United States, the couple must marry within 90 days. After the marriage, the foreign spouse can apply for adjustment of status to obtain a green card. While the K-1 process can help couples reunite more quickly, applicants should understand that it involves multiple stages, including consular interviews, medical examinations, financial sponsorship requirements, and later adjustment processing after marriage. Because immigration laws and adjudication trends continue to evolve, couples should seek experienced legal guidance to avoid delays, requests for evidence (RFEs), or denials. Careful case preparation, consistency in documentation, and truthful presentation of the relationship are essential in all marriage-based immigration matters. For assistance with marriage-based green cards, K-1 fiancée visas, waivers, or complex immigration cases, contact the Law Offices of Keshab Raj Seadie, P.C., at 212-571-6002 or visit Greencardmaker.com.Increased Risk in B-2 Change of Status for H-1B Workers
Recent developments at USCIS signal a significant shift in how B-1/B-2 change or extension of status applications are being adjudicated—particularly for individuals previously in H-1B status. During the pandemic and under prior policy guidance, USCIS had provided some flexibility allowing laid-off H-1B workers to change to B-2 status while remaining in the United States and seeking new employment. However, that approach has now been scaled back, and adjudications have returned to a more traditional and stricter interpretation of B-2 visitor intent. What Has Changed? USCIS is now treating B-2 change/extension requests under standard visitor visa principles, requiring applicants to clearly demonstrate the following:- A temporary purpose (tourism, medical visit, family visit, etc.)
- Strong ties abroad and intent to return to a foreign residence
- No intent to engage in employment or activities inconsistent with visitor status
Key Risk for H-1B Workers:
If a B-2 application is filed with the primary intention of remaining in the U.S. to search for H-1B employment, this may be viewed as inconsistent with B-2 status. Such filings are increasingly facing:- Requests for Evidence (RFEs)
- Denials based on mismatch intent concerns
- Potential future visa complications
- Timely H-1B transfer filings
- Consular processing options
- Other nonimmigrant classifications, where applicable
Pitfalls of Using Adjustment Portability After I-140 Approval and 180 Days of Pending I-485 Many employment-based green card applicants believe that once their I-140 petition is approved and the I-485 adjustment application has been pending for more than 180 days, they are completely free to change jobs under the AC21 portability provisions. While the law does provide important flexibility, there are several significant pitfalls that applicants and employers must understand before relying on adjustment portability. Under AC21, an individual may generally change employers or positions if the I-140 has been approved and the I-485 has remained pending for at least 180 days, provided the new position is in the “same or similar occupational classification.” However, USCIS carefully analyzes whether the new role truly matches the original PERM labor certification and I-140 position. Significant differences in job duties, salary structure, SOC codes, seniority level, managerial responsibilities, or worksite location may trigger Requests for Evidence (RFEs) or denials. A promotion may sometimes be acceptable, but a drastic career shift or movement into an unrelated occupation can create serious portability problems. Another common pitfall occurs when the original employer withdraws the I-140 petition or goes out of business before the required timelines are met. Although many approved I-140 petitions remain valid for portability purposes after 180 days of approval, issues involving fraud allegations, PERM invalidity, or employer inability to pay may still negatively affect the adjustment application. In addition, USCIS may scrutinize whether the original job offer was bona fide at the time the PERM and I-140 were filed. Applicants should also be cautious about relying solely on the EAD after portability without maintaining underlying nonimmigrant status such as H-1B. If the I-485 is ultimately denied, individuals who abandoned H-1B or other valid status may suddenly find themselves without lawful status or work authorization in the United States. To reduce risk, foreign nationals should carefully document the new employment offer, maintain detailed job descriptions, compare SOC classifications, and, when appropriate, file Supplement J confirming the portability request. Because AC21 portability cases involve complex legal and factual analysis, experienced immigration counsel should review any proposed job change before the employee leaves the sponsoring employer. For assistance with AC21 portability cases, I-140 approvals, RFEs, and employment-based adjustment strategies, contact the Law Offices of Keshab Raj Seadie, P.C. at 212-571-6002 or visit Greencardmaker.com
Sincerely,
Keshab Raj Seadie, Esq.
Law Offices of Keshab Raj Seadie, P.C. Disclaimer: This newsletter is intended for informational purposes only and does not constitute legal advice. Always consult an attorney for personalized advice.
