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:
May 2026 Visa Bulletin Update: Employment-Based Categories Hold Steady
The U.S. Department of State has released the May 2026 Visa Bulletin, showing no movement in most major employment-based (EB) green card categories, while U.S. Citizenship and Immigration Services confirmed it will continue to use Final Action Dates for employment-based adjustment of status filings. At a Glance:- EB-1, EB-2, EB-3: No forward movement
- EB-5 (China Unreserved): Advances slightly
- USCIS Filing Chart: Final Action Dates will control filings
Final Action Dates – May 2026
EB-1 (Priority Workers):
- India & China: April 1, 2023 (no change)
- All other countries: Current
- China: September 1, 2021
- India: July 15, 2014
- All other countries: Current
- China: June 15, 2021
- India: November 15, 2013
- Philippines: August 1, 2023
- All other countries: June 1, 2024
- China (Unreserved): Advances to September 22, 2016
- India: Remains at May 1, 2022
- All other countries: Current
- Set-aside categories (Rural, High Unemployment, Infrastructure): Current for all countries
USCIS Filing Policy:
USCIS will honor the Final Action Dates chart in May 2026. This means:
- Applicants may file Form I-485 only if their priority date is earlier than the Final Action Date
- The more favorable Dates for Filing chart will NOT be used
- Backlogs remain severe, particularly for India and China in EB-2 and EB-3
- No relief this month for most applicants waiting in line
- EB-5 investors from China see modest forward movement
- Applicants should carefully track priority dates to determine filing eligibility
Bottom line: May 2026 brings stability—but little progress—in employment-based green card categories, reinforcing the ongoing backlog challenges while USCIS maintains a stricter Final Action Date filing policy.
Using Same-Employer Experience on the PERM Application: Navigating the Pitfalls
One of the most technical — and most frequently litigated — aspects of PERM labor certification is whether a foreign worker may count experience gained with the sponsoring employer toward the minimum requirements for the offered position. The short answer is: sometimes, but only if the employer follows a narrow path set out in 20 C.F.R. § 656.17(i). Missteps here are among the top reasons PERM applications are denied, audited, or placed in supervised recruitment. The General Rule: Under 20 C.F.R. § 656.17(i)(3), an employer generally cannot require experience that the alien gained with the same employer in a substantially comparable position. The policy rationale is straightforward: PERM is designed to test the U.S. labor market for the job being offered, not to confirm that the foreign worker — who already holds the job — is uniquely qualified. If the employer taught the alien the skills on the job, U.S. workers should have the same opportunity to learn. The Two Key Exceptions: An employer may count same-employer experience only if one of the following applies:- The prior position was not substantially comparable. “Substantially comparable” is defined as a job requiring performance of the same job duties more than 50% of the time. So if the alien’s prior role with the employer involved materially different duties — for example, a Software Developer who is now being sponsored as a Data Architect — that earlier experience may count. The employer must be able to document the duty breakdown with specificity.
- It is no longer feasible to train a worker to qualify for the position. This is a high bar and rarely used. The employer must show, with evidence, that business operations cannot absorb the training burden — not merely that training would be inconvenient or expensive.
Common Pitfalls:
- Pitfall 1: Counting H-1B experience in the same role. This is the classic trap. If the alien has been working for the sponsoring employer in the identical position for several years on an H-1B, that experience almost always fails the “substantially comparable” test and cannot be used to meet the minimum requirements.
- Pitfall 2: Superficial duty changes. Simply adding “and other duties” or inflating a job title (Analyst → Senior Analyst) will not transform a substantially comparable role into a non-comparable one. DOL and BALCA look at actual duties, not labels. Audit responses that rely on cosmetic differences routinely fail.
- Pitfall 3: Promotion-from-within without proper documentation. If the alien was promoted into the sponsored role, the employer should be prepared to show — through organizational charts, job descriptions, performance reviews, and pay differentials — that the prior role was genuinely different in kind, not just in seniority.
- Pitfall 4: Counting experience with a related entity. Experience gained with a parent, subsidiary, or affiliate can still be treated as same-employer experience if the entities share common ownership and control, or if the worker was effectively supervised by the sponsoring employer. Don’t assume a separate EIN solves the problem.
- Pitfall 5: Ignoring the Kellogg issue. If the employer’s requirements include an alternate combination of experience (e.g., Master’s + 2 years or Bachelor’s + 5 years), the notice and recruitment must include the Kellogg language stating that any suitable combination of education, training, or experience is acceptable. When combined with same-employer experience issues, this is a compounding error.
- Pitfall 6: Misalignment between the ETA-9089 and the underlying record. The Form ETA-9089 asks directly whether the alien gained the qualifying experience with the employer and whether the prior position was substantially comparable. Inconsistencies between the form, the alien’s resume, prior H-1B LCAs, and I-129 petitions will surface in audits and can lead to denial or even fraud referrals.
Practical Recommendations:
Before filing a PERM where same-employer experience is in play, the sponsoring employer should prepare a side-by-side duty comparison of the prior and offered positions, with percentage allocations. The file should include evidence of the structural differences — separate reporting lines, different project portfolios, distinct skill sets, or different SOC codes where defensible. If the minimum requirements can be satisfied through experience gained before joining the employer, or with a prior unrelated employer, that is almost always the cleaner path. When in doubt, the safest strategy is to structure the minimum requirements so the alien qualifies without relying on same-employer experience at all. The PERM process rewards conservatism: a slightly lower stated minimum that the alien clearly meets from outside experience will almost always survive audit better than a tailored requirement that depends on counting years at the sponsoring employer.Immigration Fraud Crackdown: Ten Indian Nationals Indicted in U-Visa Scheme
Boston, Massachusetts – Federal authorities have indicted ten Indian nationals in connection with a sophisticated visa fraud conspiracy involving staged armed robberies designed to exploit the U.S. immigration system.
According to the U.S. Attorney’s Office, the defendants allegedly participated in orchestrated robberies at convenience stores and fast-food locations, posing as victims to fraudulently qualify for U nonimmigrant visas—a humanitarian benefit intended for genuine victims of serious crimes who assist law enforcement.
The Scheme:
Investigators revealed that beginning in March 2023, the conspiracy—led by Rambhai Patel (previously convicted in May 2025)—involved staging at least six robberies across Massachusetts and other states. During these incidents:- A “robber” would simulate a violent holdup using an apparent firearm
- Store clerks would delay reporting the incident to police
- The events were recorded on surveillance cameras to create evidence
- Participants allegedly paid to be listed as “victims” for immigration filings
Authorities allege that the organizer received payments from participants and, in some cases, compensated store owners for allowing their premises to be used.
Defendants:
The ten individuals indicted include residents from Massachusetts, Ohio, Kentucky, and other states. All had previously been charged in March 2026 and released under conditions. Two individuals are currently in immigration custody.
Legal Consequences:
Each defendant faces:
- Up to 5 years in federal prison
- Up to $250,000 in fines
- Deportation following any sentence imposed
Multi-Agency Investigation:
The case reflects a coordinated effort involving:
- Federal prosecutors and the Federal Bureau of Investigation
- U.S. Citizenship and Immigration Services
- U.S. Immigration and Customs Enforcement
- Multiple state and local law enforcement agencies nationwide
Important Note:
Authorities emphasize that all allegations remain unproven, and the defendants are presumed innocent unless and until proven guilty in court.
Bottom line: This case highlights increasing federal scrutiny on misuse of humanitarian immigration programs and signals aggressive enforcement against fraudulent schemes targeting U.S. visa systems.
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.
