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:
The H-1B Weighted Wage Lottery: Pros, Cons, and Legitimate Strategies to Improve Your Selection Odds
A Practitioner’s Perspective
Background:
Since USCIS implemented the wage-based selection system in March 2026, the H-1B cap lottery no longer operates as a pure random draw. Instead, registrations are ranked and selected based on the offered wage level relative to the Occupational Employment and Wage Statistics (OEWS) prevailing wage for the relevant occupation and geographic area. Higher wage levels get priority in selection before lower wage levels are considered.
The four wage tiers are:
- Wage Level IV (highest) is selected first. Level III is selected second. Level II is selected third. Level I (entry-level) is selected last, and only if the annual cap of 65,000 regular cap plus 20,000 U.S. master’s cap slots has not yet been filled.
The Case for the Weighted Wage System:
- Proponents of the system, including USCIS and many labor economists, offer several arguments in its favor.
- It prioritizes higher-skilled workers. In theory, higher wages correlate with greater specialization, experience, and economic contribution. Selecting Level IV and III workers first means the cap is more likely filled with senior engineers, specialized scientists, and experienced managers rather than entry-level graduates.
- It reduces lottery gaming and fraud. The old random lottery created incentives for staffing companies and body shops to flood the system with speculative registrations, sometimes for workers who had no genuine job offer or whose offer was designed purely to secure a registration slot. The wage-tiered system makes it significantly harder and more expensive to game through volume because higher wages cost real money.
- It aligns with broader immigration policy goals. The stated policy intent of the H-1B program is to admit workers who cannot easily be found in the domestic labor market. Highly compensated specialists are a closer fit to that intent than entry-level workers whose skills overlap heavily with the available U.S. workforce.
- It creates a more predictable outcome for premium employers. Large technology companies and financial institutions that routinely pay Level III and IV wages enjoy substantially higher selection rates, giving them greater workforce planning certainty.
The Case Against the Weighted Wage System:
- The system has drawn sharp criticism from employers, educators, and immigration practitioners alike, and the concerns are legitimate.
- It systematically excludes early-career talent. The vast majority of recent graduates from U.S. universities — including master’s and PhD holders — command Level I or Level II wages simply because of their limited work history, not their potential or their skill level. A brilliant computer science graduate from MIT or a newly minted data scientist starts at Level I regardless of talent. The system effectively tells U.S. universities and employers: train and recruit the best global talent you want, but don’t expect to retain them through the H-1B.
- It disadvantages smaller employers and nonprofits. A regional hospital, a mid-size tech startup, or a university research lab simply cannot compete on wages with Google, Amazon, or Goldman Sachs. The weighted lottery effectively concentrates H-1B access among a narrow band of large, cash-rich employers, undermining the program’s original design as a broadly accessible tool for employers of all sizes.
- It distorts wage data in harmful ways. Employers under pressure to hit a higher wage level may reclassify a position upward — paying a Level III wage for what is genuinely a Level II role—creating wage inflation for some workers while potentially disadvantaging others in the same occupation who are benchmarked against inflated prevailing wage data in subsequent years.
- It doesn’t actually measure skill, only compensation. Wage levels are a proxy for skill, not a direct measure of it. A pianist, a rural physician, a marine biologist, or a Nepali-speaking social worker may be extraordinarily specialized with no domestic equivalent but still command a modest wage because of the nature of their field. The system inadvertently favors high-paying industries over genuinely scarce skills.
- It has not eliminated fraud — it has shifted it. Rather than volume-based lottery fraud, the wage system has created incentives for wage inflation fraud, where employers fraudulently classify positions at a higher wage level than the actual job duties warrant. USCIS and DOL are now seeing more cases where the LCA wage level does not match the actual job description submitted in the I-129 petition, which creates serious legal exposure.
Legitimate Strategies to Improve H-1B Lottery Selection Odds:
The most important principle here is this: every strategy must be grounded in genuine business reality. The wage level declared on the Labor Condition Application (LCA) must accurately reflect the actual duties, complexity, and supervision level of the real position. What follows are lawful, ethical strategies.
1. Conduct a Genuine Job Duties Analysis:
- Before accepting a wage level as fixed, work with your attorney to carefully analyze whether the actual duties of the position — not a generic job description — genuinely support a higher wage level classification. USCIS and DOL both use the four-level framework from the OEWS guidelines, and the criteria for Level II versus Level III is often a legitimate judgment call involving factors like degree of supervision, complexity of tasks, use of independent judgment, and scope of responsibility. If the duties honestly support Level III, classify at Level III. Do not accept a default Level I or II classification without scrutiny.
2. Restructure the Role Where Genuinely Warranted:
- If a company is hiring a software engineer but the actual responsibilities include mentoring junior staff, leading technical architecture decisions, or working without direct supervision on complex systems, the role may genuinely be a Level III or IV position. Employers should consider whether the job as actually designed and performed — not just as titled — supports a higher classification. This is not manipulation; it is an accurate description.
3. Use the U.S. Master’s Cap Strategically:
- If the beneficiary holds a U.S. master’s degree or higher, they are eligible for the 20,000 additional cap slots reserved for U.S. advanced degree holders. Registrations are first run through the master’s cap pool, and those not selected are then entered into the general cap pool, effectively giving U.S. master’s degree holders two chances at selection. This advantage is significant and should never be overlooked when the beneficiary qualifies.
4. Explore Cap-Exempt Employers as a Bridge:
- Cap-exempt employers — primarily institutions of higher education, nonprofit research organizations, and government research entities — can sponsor H-1B workers without going through the lottery at all. If a beneficiary can secure a legitimate part-time or full-time position with a cap-exempt institution, they become H-1B eligible outside the lottery. A subsequent cap-subject employer can then file a concurrent H-1B, or the beneficiary can change employers once the cap-exempt H-1B is approved. This pathway is entirely lawful and increasingly used by universities, hospitals, and research institutions.
5. Consider Alternative Visa Categories Now, Not Later:
- For workers with extraordinary ability, consider O-1A petitions, which are cap-exempt and can be filed year-round. For intracompany transferees, L-1A or L-1B petitions bypass the cap entirely. For nationals of Canada and Mexico, TN status offers another cap-free option. For treaty country nationals with a qualifying investment, E-2 is available. The more time spent exploring these alternatives, the less the H-1B lottery becomes a single point of failure.
6. Build the Beneficiary’s Evidence Profile for Premium Classifications:
- If the same beneficiary will be registered in future lotteries, begin now building the record that supports a higher wage level — advanced certifications, publications, speaking engagements, patents, promotions, salary reviews, and expanded responsibilities. A worker who enters the lottery in FY2027 or FY2028 as a Level III instead of Level I because of genuine professional development has dramatically improved odds without any manipulation of the system.
7. File Early and Accurately:
- While the registration window itself does not reward early submission within the window, accuracy matters enormously. Errors in registration — mismatched employer details, incorrect SOC codes, or wage level inconsistencies between the registration and the eventual LCA/I-129 — can lead to denial or USCIS scrutiny. A clean, accurate registration that is consistent from registration through petition filing is both good practice and risk mitigation.
A Word on What Not to Do:
USCIS, DOL, and the Department of Justice are actively investigating wage level inflation fraud, where employers classify a genuinely entry-level position at Level III or IV solely to improve lottery odds. If the wage level on the LCA does not match the actual duties in the I-129 petition, and USCIS issues an RFE or a DOL investigator conducts a compliance audit, the exposure includes petition denial, debarment of the employer from future filings, back wage liability, and in egregious cases, criminal referral. The short-term gain of a lottery selection is not worth that risk.
The strategies above work precisely because they are grounded in reality. The goal is not to manufacture a higher wage level — it is to ensure the wage level accurately reflects the actual position so that selection odds are as high as the genuine job duties legitimately allow.
For strategic H-1B registration guidance, RFE response, or alternative visa pathway analysis, contact the Law Offices of Keshab Raj Seadie, P.C. — GreenCardMaker.com — Manhattan, New York.
Why You Must Work Very Hard to Choose the Right EB-5 Regional Center and Project — In Addition to Having a Verifiable Source of Funds
The EB-5 Immigrant Investor Program is one of the most powerful—and most misunderstood—paths to U.S. permanent residence. Many investors believe that once they have $800,000 (TEA) or $1,050,000 ready to invest, the hardest part is over.
That is not true.
A successful EB-5 case depends on three equally critical pillars:
1. A lawful and well-documented source of funds
2. A credible, compliant Regional Center
3. A financially and structurally sound EB-5 project
If any one of these fails, the entire case can collapse—sometimes after years of waiting.
Let’s break this down carefully:
Understanding the EB-5 Framework
The EB-5 program is administered by U.S. Citizenship and Immigration Services (USCIS). Under the program, a foreign investor may obtain a green card by:
- Investing the required capital in a U.S. enterprise
- Creating (or preserving) at least 10 full-time U.S. jobs
- Demonstrating that the investment was made with lawfully obtained funds
Most investors today file through a Regional Center, which allows indirect job creation to count toward the 10-job requirement.
But here is where risk begins.
Part 1: Your Source of Funds Must Be Bulletproof
Before even discussing the project, you must understand this:
USCIS scrutinizes the source of funds more aggressively than ever.
What USCIS Requires
You must prove:
- Where the money came from
- How you earned it
- How it was transferred
- That all taxes were paid
- That the funds were legally obtained
This can include:
- Business profits
- Salary income
- Dividends
- Property sales
- Gifts
- Inheritance
- Loans secured by your personal assets
USCIS will trace the funds step-by-step, sometimes going back 5–10 years.
Why This Matters?
If your project is perfect but your source of funds documentation is weak, your I-526E petition will be denied.
If your source of funds is perfect but the project collapses and fails to create 10 jobs, your I-829 petition may be denied years later.
Both must work together.
Part 2: Not All Regional Centers Are Equal:
A Regional Center is not a government entity. It is a private organization designated by USCIS to sponsor EB-5 projects.
Since the Reform and Integrity Act (RIA), compliance obligations have increased. However, that does not mean every Regional Center is financially stable or professionally managed.
When evaluating a Regional Center, you must examine:
- How long it has operated
- How many I-526 approvals it has obtained
- How many I-829 approvals it has obtained
- Whether investors have been repaid in past projects
- Whether it has faced SEC or litigation issues
- Its compliance reporting structure
A Regional Center may be “designated” but still inexperienced or financially fragile.
Part 3: The Project Is the Real Risk:
The project—not USCIS—is where most EB-5 failures occur.
Your immigration approval depends on job creation. Job creation depends on project success.
If the project:
- Runs out of funding
- Faces construction delays
- Cannot secure senior financing
- Fails to meet its economic projections
- Goes into bankruptcy
Then your immigration future is placed at risk.
Key Questions Every Investor Must Ask
- Is the project in a rural or urban TEA?
- Is there visa set-aside protection (rural priority)?
- Is the capital stack complete?
- How much senior debt exists?
- What is the job cushion? (20–30% buffer is safer)
- Is the developer financially strong?
- Has construction begun?
- Is the exit strategy realistic?
Never invest based solely on:
- Marketing brochures
- Hotel renderings
- “Guaranteed” language (which is illegal under EB-5 rules)
- Pressure to invest quickly
EB-5 is not a donation. It is a risk investment.
The Capital Stack: A Critical Analysis
A strong EB-5 project usually includes:
- Developer equity (skin in the game)
- Senior bank financing
- EB-5 capital as a minority portion
- Realistic job projections supported by third-party economists
If EB-5 funds represent 70–80% of the total capital stack, that is higher risk.
Immigration Risk vs. Financial Risk
EB-5 investors face two types of risk:
1. Immigration Risk
- USCIS denial
- Failure to create 10 jobs
- Project noncompliance
2. Financial Risk
- Loss of investment
- Delayed repayment
- No exit liquidity
You must evaluate both independently.
Why Due Diligence Must Be Aggressive
Before investing, serious investors:
Review the Private Placement Memorandum (PPM)
- Analyze the business plan
- Review the economic impact report
- Examine construction timelines
- Review securities disclosures
- Understand loan terms and repayment structure
This is not optional. It is essential.
Rural vs. Urban Projects: Strategic Consideration
Under current law:
- Rural projects receive visa set-aside benefits
- Rural cases are often processed faster
- Urban TEA projects may face longer waiting periods
However, rural projects may also involve smaller markets and execution risks.
The “faster” option is not automatically the “safer” option.
The Long Timeline Reality
EB-5 is not quick:
- I-526E processing can take years
- Conditional residence lasts 2 years
- I-829 adjudication can take additional years
You are committing capital and immigration strategy for nearly a decade.
This requires precision—not emotion.
Common Mistakes Investors Make
- Choosing based on immigration marketing seminars
- Ignoring project financials
- Relying solely on migration agents abroad
- Not independently verifying job cushion
- Assuming past approval guarantees future approval
Past performance does not eliminate risk.
The Bottom Line
A successful EB-5 green card requires:
- Lawful, well-documented source of funds
- A compliant, experienced Regional Center
- A financially strong and properly structured project
- Conservative job creation analysis
- Professional legal guidance
If any of these pillars fail, the consequences can be devastating—both financially and personally.
Final Thought
EB-5 is not just an investment.
It is your family’s immigration future.
You must work very hard to choose wisely.
Careful project selection, financial analysis, and meticulous documentation are not optional steps. They are the foundation of success.
Ninth Circuit Stays District Court Order — TPS for Honduras, Nepal, and Nicaragua Terminated Again
The United States Court of Appeals for the Ninth Circuit has granted the federal government’s emergency request to stay a California district court ruling that had reinstated Temporary Protected Status (TPS) for nationals of Honduras, Nepal, and Nicaragua. As a result of the stay, TPS for beneficiaries from these three countries is once again considered terminated, effective immediately, while the underlying appeal proceeds.
The appellate case, National TPS Alliance et al. v. Noem et al., centers on whether the Department of Homeland Security (DHS) acted lawfully when it terminated TPS designations for the three countries. The district court had previously vacated those terminations, briefly restoring protections — but the Ninth Circuit’s intervention has reversed that outcome pending further review.
What This Means for TPS Holders:
The practical consequences are immediate and serious. TPS beneficiaries from Honduras, Nepal, and Nicaragua who had been relying on the reinstated protections — including work authorization through Employment Authorization Document (EAD) auto-extensions — no longer have that protection in effect. U.S. Citizenship and Immigration Services (USCIS) has not yet updated its TPS country pages to reflect the Ninth Circuit’s ruling, but those updates are expected shortly and beneficiaries should monitor the USCIS website closely.
The stay will remain in place while the Ninth Circuit considers the merits of the government’s appeal. The ultimate outcome of National TPS Alliance v. Noem will determine the long-term fate of TPS for these three nationalities. Advocates for TPS holders have vowed to continue fighting the terminations through the courts.
Affected individuals are strongly urged to consult with a qualified immigration attorney immediately to assess their current status and explore available alternatives, including adjustment of status, other visa options, or humanitarian protections that may apply to their circumstances.
For legal guidance on TPS and related immigration matters, contact the Law Offices of Keshab Raj Seadie, P.C. — GreenCardMaker.com — serving clients nationwide from Manhattan, New York.
U.S. Department of Labor Releases February 2026 PERM and Prevailing Wage Processing Update
The U.S. Department of Labor (DOL) has published its latest processing time report for PERM labor certifications and prevailing wage determinations (PWDs), reflecting continued backlogs in key employment-based immigration categories.
As of February 9, 2026, the agency is advancing adjudications across multiple queues, but substantial volumes remain pending—particularly for PERM filings submitted in late 2025.
PERM Labor Certification Processing:
Analyst Review:
- DOL is currently conducting analyst review for PERM applications filed in September 2024 or earlier.
Audit Review:
- For cases selected for audit, DOL is reviewing PERM applications filed in June 2025 or earlier.
Reconsideration Requests:
- The agency is processing reconsideration requests filed in September 2025 or earlier.
- These timelines reflect continued delays for employers pursuing employment-based green card sponsorship under the PERM program.
Prevailing Wage Determination (PWD) Processing:
As of February 9, 2026, DOL is issuing PWDs for:
- PERM OEWS-based requests filed in November 2025
- PERM non-OEWS requests filed in October 2025
- H-1B OEWS and non-OEWS requests filed in November 2025
- PERM and H-1B redeterminations requested in October 2025
- PERM Center Director Reviews from August 2025
The agency continues to process requests through the FLAG system.
Remaining Requests by Category
PERM Pending Inventory:
The largest backlog remains in PERM cases filed in late 2025:
- November 2025: 8,447 pending
- December 2025: 14,019 pending
- January 2026: 16,636 pending
Earlier months show significantly fewer pending cases, suggesting that the queue is heavily concentrated in recent filings.
H-1B Prevailing Wage Requests Pending:
- November 2025: 121
- December 2025: 169
- January 2026: 218
Earlier 2025 months show minimal remaining requests, indicating relatively steady progress in the H-1B PWD queue.
H-2B Pending Requests:
- December 2025: 518
- January 2026: 367
CW-1 Pending Requests
- December 2025: 3
- January 2026: 162
Practical Impact for Employers
For employers sponsoring foreign nationals:
- PERM recruitment planning is critical, as analyst review is currently more than a year behind (September 2024 filings).
- PWD timelines for PERM and H-1B remain several months long, particularly for late 2025 filings.
- Audit cases face significantly longer wait times.
- Strategic timing of recruitment, wage determinations, and I-140 filing preparation is essential to avoid status gaps.
Employers should closely monitor DOL’s monthly updates and adjust immigration planning timelines accordingly.
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.
