EB-5 Is Entering Limbo. EB-1A and EB-2 NIW Remain the Reliable Road to a Green Card.
On September 30, 2026, the EB-5 Regional Center Program loses its safety net. Under the EB-5 Reform and Integrity Act, only petitions filed by that date are statutorily protected from a future lapse. The program’s authorization runs through September 30, 2027, but there is no guarantee Congress will renew it — and the administration is openly promoting a competing $1 million “Gold Card” scheme. Investors who file after September 30 are betting their capital and their immigration future on a Congress that has let this program lapse before.
For talented professionals, researchers, executives, physicians, and entrepreneurs, there is a better path — one that doesn’t require an $800,000 investment or a wait on legislative goodwill.
Why EB-1A and NIW are the reliable vehicles:
- No employer, no sponsor, no investment. Both are self-petitions. You control the case.
- No PERM labor certification. You skip the 12–18 month recruitment process entirely.
- Premium processing. EB-1A and NIW I-140s can be decided in 15 business days.
- Better visa availability. EB-1 is the fastest-moving employment category for India- and China-born applicants; NIW (EB-2) is a strong option for nationals of most other countries.
- Portability and stability. Approval is tied to your own record, not to a project’s job creation or a regional center’s compliance.
What a winning case looks like:
EB-1A (Extraordinary Ability). You must satisfy at least three of ten regulatory criteria — judging, original contributions of major significance, scholarly articles, leading or critical roles, high salary, press coverage, awards, memberships, artistic display, or commercial success — and then survive the final merits determination: that you are among the small percentage at the very top of your field. The cases that win don’t just list criteria; they tell a coherent story of impact, backed by independent evidence.
EB-2 NIW (National Interest Waiver). Under Matter of Dhanasar, you must show that your proposed work has substantial merit and national importance, that you are well positioned to advance it, and that waiving the job offer benefits the United States. The strongest NIW petitions tie your work to a documented national priority — healthcare, AI, cybersecurity, infrastructure, energy, STEM education — and prove you are already moving that field forward.
In both categories, the difference between an approval and an RFE is usually the same thing: how the evidence is organized, how the expert letters are written, and whether the petition anticipates the officer’s objections before they are raised.
How our firm builds these cases differently:
For more than 25 years, the Law Offices of Keshab Raj Seadie, P.C. has prepared employment-based petitions for professionals from around the world. What has changed is how we do it.
- A library of over 100,000 cases. We know what USCIS has approved, what it has questioned, and how it reasons — across adjudicators, service centers, and policy shifts.
- AI-assisted case analysis. We use generative AI tools, trained on our own approval and RFE history, to map your credentials against the regulatory criteria, identify evidence gaps early, and stress-test the petition against the arguments USCIS actually raises.
- Precision drafting. Recommendation letters, criteria briefs, and the final merits argument are drafted, cross-checked, and refined with technology — then reviewed line by line by an attorney with a quarter century in this practice.
- Speed without shortcuts. Technology compresses weeks of document work into days, which means your case files sooner and your priority date is secured earlier.
The window is open now:
If you have been waiting for EB-5 clarity, stop waiting. If you have a track record of achievement in your field — publications, patents, leadership roles, media recognition, or work that advances a national priority — you may already qualify for EB-1A or NIW.
Schedule a case evaluation with our team. We’ll tell you candidly which category fits, what evidence you’ll need, and how quickly we can file.
Federal Court Blocks DHS Rule Ending “Duration of Status” for F-1 and J-1 Visa Holders
In a major development for international students and exchange visitors, a federal court has temporarily blocked the Department of Homeland Security’s new rule eliminating “Duration of Status” for F-1 students, J-1 exchange visitors, and I foreign-media representatives.
The final rule, published by DHS on July 17, 2026, was scheduled to take effect on September 15, 2026. It would have replaced the longstanding D/S admission system with fixed periods of admission. F-1 and J-1 nonimmigrants generally would have been admitted only until the end of their program or for a maximum of four years, whichever was shorter.
On September 14, 2026—one day before the scheduled effective date—the U.S. District Court for the District of Massachusetts issued a preliminary injunction preventing DHS from implementing the rule. Consequently, the rule did not take effect on September 15.
What This Means Right Now:
F-1 and J-1 nonimmigrants should continue to operate under the existing rules. Eligible students and exchange visitors may continue to be admitted for D/S, meaning they generally remain authorized while properly maintaining their status and complying with their academic or exchange program requirements.
The following proposed changes are therefore currently suspended:
- Fixed four-year admission periods for most F-1 and J-1 nonimmigrants;
- The proposed 30-day F-1 grace period;
- Mandatory Form I-539 filings connected with certain OPT applications;
- New restrictions on school transfers and changes of academic programs;
- Restrictions on pursuing a second degree at the same or a lower educational level; and
- The 24-month limitation on English-language training.
Students Should Remain Cautious:
The injunction is preliminary and the litigation is continuing. DHS may appeal, and the rule could later take effect if the injunction is reversed, narrowed, or dissolved.
International students, exchange visitors, educational institutions, and employers should closely monitor further court and agency announcements. Before traveling internationally, transferring schools, changing programs, extending a program, or applying for OPT or STEM OPT, affected individuals should review their immigration documents and obtain individualized advice.
States and Cities Sue to Block New Public Charge Rule
New York and a coalition of states and local governments filed two federal lawsuits on September 14, 2026, seeking to block the Trump administration’s new public charge rule.
The lawsuits, filed in the U.S. District Court for the Southern District of New York, contend that the rule violates the Administrative Procedure Act and unlawfully expands the public charge ground of inadmissibility. The challengers argue that the rule creates confusion and fear that may discourage eligible immigrants—and even their U.S.-citizen family members—from using healthcare, food assistance and other public benefits for which they legally qualify.
The lawsuits ask the federal court to prevent the government from implementing and enforcing the rule. However, filing a lawsuit does not automatically suspend a federal regulation. Unless the court issues an injunction or another order blocking enforcement, applicants should continue complying with the rule and current USCIS requirements.
The litigation could have significant consequences for adjustment-of-status applicants, intending immigrants, sponsors and families who use public benefits. Applicants should obtain individualized legal advice before changing benefit use or submitting immigration applications based solely on reports about the lawsuits.
DHS Proposes Eliminating 60-Day Grace Period for H-1B, L-1, O-1, TN and Other Workers
The Department of Homeland Security has proposed eliminating the discretionary grace period of up to 60 days presently available to certain employment-based nonimmigrant workers after their employment ends.
The proposal would affect individuals in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN status, together with their dependent family members.
Current Rule Remains in Effect:
This is only a Notice of Proposed Rulemaking—not a final rule. The existing grace period remains available while DHS reviews public comments and decides whether to issue a final rule.
Under the current regulation, an eligible worker whose employment ends before the expiration of the authorized validity period may receive a discretionary grace period of up to 60 consecutive days—or until the end of the authorized stay, whichever is shorter.
The grace period can allow the worker to remain in the United States while pursuing options such as:
- Obtaining a new sponsoring employer;
- Filing an H-1B change-of-employer petition;
- Applying to change or extend nonimmigrant status;
- Filing an adjustment-of-status application, if eligible;
- Applying for a compelling-circumstances employment authorization document; or
- Preparing to depart the United States.
What DHS Is Proposing:
DHS proposes removing 8 C.F.R. §214.1(l)(2), which provides the discretionary grace period.
If the proposal becomes a final rule, an affected worker whose qualifying employment or activity ends would generally be considered to have failed to maintain status beginning the following day. The worker and dependent family members would be expected to depart the United States immediately unless they have another independent legal basis to remain.
DHS states that the proposal would restore the direct relationship between a worker’s nonimmigrant status and the employment or activity upon which that status is based. DHS also claims that eliminating the grace period would reduce the administrative burden on USCIS when adjudicating later immigration applications and petitions.
Serious Consequences for Workers and Families:
Elimination of the grace period could create severe consequences for foreign professionals who are laid off or otherwise lose their employment unexpectedly.
Affected workers may no longer have time inside the United States to search for another employer, complete an LCA, prepare a new petition or apply for another immigration status. Dependent spouses and children could also lose their status when the principal worker’s employment ends.
DHS acknowledges that the proposed rule may result in:
- Immediate departures from the United States;
- Lost income for affected workers and employment-authorized spouses;
- Disruption to families and children attending school;
- Temporary productivity losses for U.S. employers;
- Increased consular processing and international travel;
- Additional Notices to Appear and removal proceedings; and
- Increased costs for employers responsible for return transportation in certain H-1B and O-1 termination cases.
DHS considered shortening the grace period instead of eliminating it, but rejected that alternative.
Impact on H-1B Portability
The proposal would not repeal the statutory H-1B portability provision that may allow an eligible H-1B worker to begin working for a new employer after USCIS receives a properly filed, nonfrivolous H-1B petition.
Nevertheless, without the grace period, timing would become critical. Ideally, the new H-1B petition would need to be filed before the employee’s existing employment ends. A petition filed after termination could create questions concerning maintenance of status, extension of stay and whether the worker must leave the United States for consular processing.
Workers in E-1, E-2, E-3, H-1B1, L-1, O-1 and TN classifications generally cannot begin employment with a new employer merely because a petition has been filed. In most cases, they must wait for the appropriate approval or obtain admission in the new employment classification.
Employers Should Prepare Now:
Although the proposal is not yet effective, employers should consider taking precautionary measures:
- Notify immigration counsel before terminating or laying off a sponsored worker;
- Provide as much advance notice as legally and practically possible;
- Begin transfer or change-of-employer filings before employment ends;
- Review immigration consequences before accepting a resignation;
- Properly withdraw applicable petitions and LCAs;
- Determine whether the employer owes return-transportation expenses; and
- Include dependent family members in the immigration planning process.
Foreign workers should contact immigration counsel immediately after receiving notice of a possible termination, layoff, resignation or reduction in qualifying employment. Waiting until the last day of employment could eliminate important options if the proposed rule is finalized.
Public Comments Due November 10, 2026:
DHS is accepting public comments through November 10, 2026, under DHS Docket No. USCIS-2026-0364. Comments should identify the specific provision being addressed and include supporting facts, data or legal authority.
The Law Offices of Keshab Raj Seadie, P.C. will continue monitoring this proposal. Employers and foreign workers who may be affected should begin contingency planning now instead of waiting for publication of a final rule.
CSPA Protection for Employment-Based Derivative Children With Pending Adjustment Applications
Children included as derivative beneficiaries in employment-based green card cases do not automatically lose eligibility when they reach their biological 21st birthday. The Child Status Protection Act (CSPA) provides a special formula that may preserve the child’s eligibility for permanent residence.
However, an important USCIS policy change effective August 15, 2025 altered which Visa Bulletin chart is used to determine when an immigrant visa becomes available for CSPA purposes. The distinction can be critical for children of applicants from countries with lengthy employment-based backlogs.
The Basic CSPA Calculation:
For most employment-based derivative beneficiaries, the formula is:
CSPA age = Biological age when an immigrant visa becomes available − Number of days the Form I-140 was pending
The Form I-140 pending period generally runs from the date USCIS properly received the petition through the date USCIS approved it.
For example, if the child was biologically 21 years and four months old when a visa became available, but the Form I-140 was pending for ten months, the child’s calculated CSPA age would be approximately 20 years and six months. The child may therefore remain classified as a “child” under immigration law.
The calculation is only part of the analysis. The derivative beneficiary generally must also:
- Have a calculated CSPA age under 21;
- Remain unmarried; and
- “Seek to acquire” lawful permanent residence within one year after a visa becomes available, unless an exception applies.
Filing Form I-485 is one of the principal ways to satisfy the sought-to-acquire requirement.
Rule Before August 15, 2025: Dates for Filing Could Control:
Under USCIS policy in effect before August 15, 2025, visa availability for CSPA purposes could be determined using the Dates for Filing chart—Chart B—when USCIS authorized applicants to use that chart for adjustment filings.
This policy was especially beneficial to employment-based applicants because Chart B frequently became current months or years before the Final Action Dates chart—Chart A.
When a derivative child’s priority date became current under Chart B, the child’s CSPA age could be calculated at that earlier point. If the calculated age was under 21 and the child timely filed Form I-485, the child’s CSPA age could become protected even though the case could not yet be approved under Chart A.
Importantly, filing Form I-485 did not independently create CSPA protection. Protection depended on the child’s calculated CSPA age, visa availability under the applicable policy, satisfaction of the sought-to-acquire requirement, and continued eligibility as an unmarried derivative child.
Protection for Applications Pending Before August 15, 2025:
USCIS provided transitional protection for adjustment-of-status applications that were already pending before the new policy became effective.
Therefore, if an employment-based derivative child properly filed Form I-485 before August 15, 2025, and the application remained pending on that date, USCIS generally applies the earlier policy when determining visa availability for CSPA purposes. This means the agency may continue using the Dates for Filing chart applicable to that pending case.
This transitional provision can be extremely important for a derivative child who:
- Filed Form I-485 while the priority date was current under Chart B;
- Had a calculated CSPA age under 21 at that time;
- Properly satisfied the sought-to-acquire requirement;
- Remained unmarried; and
- Continued to have a pending adjustment application on August 15, 2025.
Such a child may remain protected even if the child is now biologically older than 21 and the family’s priority date did not become current under Chart A until years later.
Rule Beginning August 15, 2025: Final Action Dates Control:
For adjustment applications filed on or after August 15, 2025, USCIS generally determines CSPA visa availability by using the Department of State’s Final Action Dates chart—Chart A.
Chart B may still permit a person to submit Form I-485 when USCIS designates it for filing. However, filing under Chart B no longer necessarily means that a visa is available for calculating and freezing the child’s CSPA age.
Under the post-August 15, 2025 policy:
- Chart B may determine when Form I-485 can be submitted;
- Chart A determines when a visa becomes available for CSPA age calculation; and
- The child continues to age biologically while waiting for the priority date to become current under Chart A.
This distinction creates a serious risk for children in heavily backlogged employment-based categories.
Hypothetical Example:
Assume the following illustrative facts:
- The derivative child was born on October 1, 2003.
- The principal beneficiary’s Form I-140 was filed on January 1, 2014.
- USCIS approved the Form I-140 on January 1, 2015.
- The I-140 was therefore pending for approximately 365 days.
- The priority date became current under Chart B on June 1, 2023.
- USCIS permitted applicants to use Chart B that month.
- The child properly filed Form I-485 in July 2023.
- The application remained pending on August 15, 2025.
- The priority date did not become current under Chart A until June 1, 2026.
Analysis Under the Pre-August 15, 2025 Policy:
On June 1, 2023, the child was approximately 19 years and eight months old.
After subtracting the 365-day I-140 pending period, the child’s CSPA age would be approximately 18 years and eight months.
Because the calculated CSPA age was under 21 and the child filed Form I-485, the child may have satisfied the sought-to-acquire requirement and locked in CSPA protection under the earlier Chart B policy.
If the adjustment application was still pending on August 15, 2025, USCIS should generally continue evaluating that application under the prior policy.
Analysis Under the Post-August 15, 2025 Policy:
If the child had filed Form I-485 on or after August 15, 2025, Chart B would not normally control the CSPA calculation.
When the priority date became current under Chart A on June 1, 2026, the child would have been approximately 22 years and eight months old. Subtracting the 365-day I-140 pending period would produce a CSPA age of approximately 21 years and eight months.
Because the calculated CSPA age would be over 21, the child would ordinarily have aged out of derivative eligibility, even if USCIS had previously permitted the family to file adjustment applications under Chart B.
A Pending Form I-485 Does Not Guarantee CSPA Protection:
Families should not assume that merely having a pending Form I-485 guarantees protection. USCIS must examine several issues, including:
- The date the derivative’s Form I-485 was filed;
- Whether it was pending on August 15, 2025;
- Which Visa Bulletin chart USCIS authorized for filing;
- The child’s biological age when the visa became available under the applicable policy;
- The number of days the Form I-140 was pending;
- Whether the child timely sought to acquire permanent residence;
- Whether any visa retrogression affects the analysis;
- Whether the child remained unmarried; and
- Whether the principal applicant and derivative maintained the required relationship and underlying eligibility.
A transfer of the pending adjustment application to a different employment-based petition or category may also require a new CSPA analysis.
The One-Year Sought-to-Acquire Requirement
Even when the calculated CSPA age is under 21, the derivative generally must seek to acquire permanent residence within one year after visa availability.
A properly filed Form I-485 usually satisfies this requirement. Other actions may also qualify in limited circumstances. USCIS may excuse a failure to act within one year when the applicant establishes extraordinary circumstances, but this exception is fact-specific and should not be treated as automatic.
What Families Should Do Now:
Employment-based applicants with children approaching age 21 should obtain a case-specific CSPA review immediately. The review should include:
- The child’s exact date of birth;
- The priority date and employment-based category;
- The Form I-140 receipt and approval dates;
- Every relevant Visa Bulletin;
- USCIS’s monthly chart-selection announcement;
- The child’s Form I-485 filing and receipt dates;
- Whether the application was pending on August 15, 2025;
- Any periods of visa retrogression;
- Any transfer-of-basis or amended-petition history; and
- Evidence showing that the child timely sought to acquire permanent residence.
The difference between using Chart B and Chart A can determine whether a child receives permanent residence with the family or loses derivative eligibility. Because CSPA calculations are highly date-sensitive, families should not rely solely on the child’s biological age, an online calculator, or the fact that Form I-485 was accepted.
Every case should be evaluated individually under the policy applicable to the filing date and procedural history.
This article provides general information and does not constitute legal advice. CSPA determinations are fact-specific and may be affected by later policy changes, litigation, or the particular history of the case.
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.
