Dear Clients and Colleagues,
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:
Holiday Travel Advisory: H-1B, L-1, TN, E-3, O-1, and F-1 (CPT, OPT, STEM OPT)
Holiday travel is riskier this year. Three things can derail a trip: a visa stamp stuck in administrative processing (221(g)), an online footprint that doesn’t match your immigration paperwork, and a device search at the airport. If you don’t have to leave the U.S. this season, don’t. If you must, handle all three before you go.
1. Do you need a new visa stamp? That is the biggest risk:
- If your visa stamp is valid, you don’t need the consulate. Your risk is the border inspection (section 4).
- If your stamp is expired, there is generally no domestic stamping. Most H-1B applicants must travel abroad to a U.S. embassy or consulate. Expect expanded social media vetting, narrowed interview waivers, and a limit of one appointment reschedule. Third-country processing has also been curtailed, so confirm where you may apply before booking.
- Plan for a 221(g). A 221(g) hold can stall a case indefinitely and leave you stranded abroad for months. If you must be back at work or school by a fixed date, don’t apply now.
- If you get a 221(g) slip, respond quickly. Applicants generally have one year to submit requested documents and are advised to wait 180 days after the interview before a routine status inquiry.
- $100,000 note: On a plain reading of the USCIS update, the $100,000 fee does not apply to a beneficiary who already holds an H-1B visa or an approved petition filed before September 21, 2026. The payment is also currently blocked by two federal courts, though the government is appealing.
2. Make your online footprint match your paperwork:
Who is covered. The State Department instructs H-1B and H-4 applicants to set all social media profiles to public, and F, M, and J applicants were covered earlier. TN and TD applicants were added October 1, 2026. One current summary says L-1, O-1, and E-2 are not expressly named in the latest announcement, and E-3 is not listed. That doesn’t make your online presence irrelevant, because officers can still look. Also, visa forms ask for social media identifiers used in the preceding five years.
Why consistency matters. Any mismatch between your online profiles and the DS-160 or petition details (title, employer, dates, duties) can prompt questioning or delay. Before you travel, make these match across your LinkedIn, resume, DS-160, I-20, or petition and pay records:
- Job title, employer, and end client.
- Employment start and end dates.
- Duties and level of responsibility.
- Degrees, schools, and graduation dates.
- Prior employers and gaps.
- Location (a “working from India” post doesn’t help an H-1B worksite story).
- Freelance or side income.
- “Open to work” or job-hunting posts.
- Anything suggesting work outside your authorization.
- For F-1 students, a job on LinkedIn that your CPT or OPT doesn’t cover.
- Don’t invent accounts or handles.
- Don’t answer “None” if you used accounts.
- Don’t fabricate or inflate titles to look better.
- Don’t rush to delete accounts or history the night before an interview, because it can look like concealment. Fix what is inaccurate and talk to counsel first.
3. Documents to carry, by category:
- If you have a pending change-of-status or extension filing, leaving the U.S. can abandon it. Ask us before you book.
4. F-1 students: the September 15 rule changes re-entry:
- Students admitted on or after September 15, 2026, receive a fixed admission end date on the I-94. That date is tied to your I-20 program end date or EAD, and reentry after that date can mean no six-month OPT application window and an I-539 filing with the OPT or STEM OPT application. The grace period also shortens to 30 days.
- If you were admitted under D/S, you generally don’t need to act unless you travel. If you travel, check your new I-94 online the day you land. An error on the admit-until date can create status problems later. Students on CPT, and especially Day-1 CPT, should expect closer questions about enrollment and attendance.
5. At the airport: be ready for a device search:
CBP can inspect devices at the border. You aren’t required to provide a password, but a visa holder who refuses may be denied entry and have the device seized. CBP policy allows holding a device for up to five days, and officers are not supposed to access cloud-stored data. Our advice:- Assume your phone may be reviewed. Keep messages, job-search chats, and payment apps consistent with your status and employment.
- Carry only the data you need. Update and back up your phone before the trip.
- Never delete or wipe anything at the checkpoint or after being asked. Destroying data can be treated as obstruction or misrepresentation.
- Answer truthfully and consistently. Mismatched answers are worse than slow ones.
- Privileged information: if the device holds attorney-client communications, say so at the outset and ask for a supervisor.
- Ask for the receipt if a device is detained, and call us.
6. Reconsider travel if:
- You have a pending status change, extension, or OPT application.
- You have a prior status violation, an arrest, or a prior visa refusal.
- You are near your OPT unemployment limit or have a SEVIS problem.
- You must return by a deadline and need a new stamp.
Our firm can review your immigration history and travel plans before you book your trip to help identify any potential concerns.
H-1B CAP Registration in March 2027 (FY 2028): How to Beat the Wage-Weighted Lottery
The H-1B lottery is no longer a pure game of chance. If you want a cap-subject H-1B in October 2027, you need to prepare your wage level, job classification, and backup options before registration opens.What we know and what we don’t:
USCIS has not announced the FY 2028 dates. March 2027 is expected based on prior cycles, and the FY 2027 window ran March 4 to 19, 2026. USCIS must announce the dates at least thirty days in advance. In FY 2027, selection notices came by March 31, and the petition filing window ran April 1 to June 30. The registration fee was $215 per registration. Expect a similar calendar, but confirm it when USCIS publishes the notice.
How the weighted lottery works:
Registrants must identify the highest OEWS wage level that the beneficiary’s proffered wage meets or exceeds for the SOC code and area of intended employment. The entries are:
- Level IV: 4 entries
- Level III: 3 entries
- Level II: 2 entries
- Level I: 1 entry
How to improve your odds, lawfully:
- Identify the correct SOC code and wage level now. Check the OEWS data for the exact SOC code and worksite county. Do this in November or December, not the week of registration.
- Know your gap to the next level. If the offered wage is close to the next level, the employer may decide to raise it. Moving from Level I to Level II doubles the entries. The raise must be a real, paid wage.
- Consider the true worksite. A genuine job in a lower-wage area can meet a higher level at the same salary. The location must be where the person will actually work. For multiple worksites, the registration must use the lowest corresponding wage level.
- Get the SOC code right, not convenient. The code must fit the real duties. The petition must include evidence that the SOC code, worksite, and wage level on the registration were appropriate. Choosing a code only to lower the wage threshold invites a denial.
- Never register a wage you won’t pay. The petition must offer a wage that equals or exceeds the prevailing wage for the level used at registration. An inflated registration can lead to denial, revocation, or worse.
- Use the master’s cap. If you hold a U.S. master’s or higher, make sure the registration claims it. Confirm the degree will be conferred before the petition is filed.
- Look at cap-exempt employers. Universities, certain nonprofit research organizations, and government research organizations are not subject to the cap fee proposal. They also skip the lottery.
- Build a Plan B before March. Depending on the profile, consider O-1, EB-1A, EB-2 NIW, L-1, E-3, H-1B1, TN, or a further F-1 OPT/STEM OPT period.
Fees and policy risks to budget for:
- The $100,000 Proclamation payment: As of early November 2026, two federal courts have blocked it, and the government is appealing. A September 2026 proclamation extended it through September 21, 2027. It generally does not apply to beneficiaries in the U.S. who are sponsored for a change of status, extension, or amendment. However, it can apply if USCIS rejects the change of status and approval is possible only through consular processing. A clean status history is therefore part of your H-1B strategy.
- The proposed $103,265 fee: DHS proposed it in August 2026 for every cap-subject petition. It is a proposal only and not in effect. Employers should plan for the chance that it is finalized before the FY 2028 filing window.
- Rule changes: As of now, no amendment to the weighted-selection rule has been found. Check again when USCIS announces the FY 2028 dates.
Your preparation timeline:
- Now to December: Candidates list their degrees, status dates, and passport details. Employers pick SOC codes, worksites, and wage levels, and decide which roles can move up a level.
- January: Create or verify the USCIS organizational account, confirm the budget, and collect each beneficiary’s valid passport information.
- February: Finalize and document the wage-level analysis. Draft the job description and keep the OEWS printouts on file.
- March: Submit registrations when the window opens. Don’t wait for the last day.
- By March 31 (expected): Check the USCIS online account. If selected, file between April 1 and June 30 with a certified LCA and the full petition.
- If not selected: Move to Plan B right away, and watch for a possible second selection round.
Our message:
Employers: Run the wage-level analysis now and document it. It is the one factor you control. Candidates: Ask your employer which level they will register, and confirm your status history is clean.
F-1 Students Beware: Protect Your Status on CPT, OPT, STEM OPT, and the H-1B CAP-Gap
An Immigration Compliance and Legal Risk Advisory:
Many F-1 students believe a valid I-20, an EAD, a pending H-1B, or a pending USCIS application automatically protects their status. It does not. The consequences can include loss of work authorization, denial of future benefits, a Notice to Appear (NTA), and removal proceedings. The core rule: maintaining lawful status and having permission to work are related but legally distinct.1. Rules for maintaining F-1 status:
- Keep documents current. Maintain your I-20, SEVIS record, passport, and I-94. Under the September 15, 2026 fixed-admission regulations, watch your admission expiration date and any required extension of stay.
- Stay enrolled. Maintain a full course of study and get DSO approval before reducing your load.
- Never work without authorization. Employment must be authorized under CPT, OPT, STEM OPT, or another applicable provision.
- Follow CPT rules. CPT must appear on your I-20 before work begins, be integral to an established curriculum, and match the employer, dates, and location.
- Follow OPT rules. Work must relate directly to your major. Report changes promptly.
- Follow STEM OPT rules. Use a qualifying E-Verify employer, maintain a genuine training relationship, and complete Form I-983 and all evaluations.
- Watch unemployment limits. Post-completion OPT allows 90 days. STEM OPT allows a cumulative 150 days, including unemployment during initial OPT.
- Report changes within 10 days. This covers address, employment, termination, and other reportable events.
- Don’t assume a new I-20 or employer fixes a violation. It does not cure an existing violation.
- Keep a complete record. Preserve I-20s, I-94s, EADs, pay records, W-2s, training plans, transcripts, attendance records, and H-1B notices.
2. H-1B CAP-gap: who gets it and who doesn’t:
CAP-gap bridges the period between the end of F-1 status or OPT and the October 1 H-1B start date. Under the current rule, a timely filed, cap-subject H-1B petition requesting change of status may extend F-1 status and, where eligible, OPT/STEM OPT work authorization until the H-1B start date or April 1, whichever comes first.Who qualifies
- Post-completion OPT holders: The H-1B petition must be filed while the OPT is still valid, meaning before the EAD expires. Both F-1 status and work authorization are extended.
- STEM OPT holders: The petition must be filed before the STEM OPT period ends. Both status and work authorization are extended, but only if you are in full STEM OPT compliance (E-Verify employer, I-983, reporting).
- CPT students: Cap-gap can extend F-1 status if you are still in a period of authorized stay when the petition is filed. It does not extend CPT work authorization, which ends with the CPT dates or program completion.
- Situation Result Valid OPT/STEM OPT; petition filed before expiration Status and work authorization extended OPT expired; filed during grace period Status may be extended; work does not resume Selected in the registration, no petition filed No cap-gap Petition requests consular processing No cap-gap Petition filed after the authorized stay ended No cap-gap H-1B denied, withdrawn, or revoked, or change of status denied Cap-gap ends; consequences depend on the reason.
- CAP-gap does not excuse unauthorized work, excess unemployment, STEM OPT violations, or other status failures. After a denial, get legal review immediately. A 60-day grace period may be available, but not where the denial involves a status violation, fraud, or misrepresentation.
3. CPT and Day-1 CPT:
CPT is legitimate when properly authorized and tied to a genuine curriculum. Enrolling mainly to keep working, without real academic participation, creates serious risk. Be prepared to show that:
- The program is legitimate and attendance requirements are met.
- CPT was authorized before work began.
- Employment, attendance, and academic records are consistent.
- SEVIS compliance is documented.
- You have not used 12 months or more of full-time CPT, which generally eliminates post-completion OPT eligibility at that level.
4. STEM OPT documentation:
- An unexpired EAD is not enough. USCIS may examine whether the employment is genuine, whether the employer provides real supervision and training, and whether the I-983 matches reality. Keep evidence of employment, pay, supervision, assignments, and evaluations. Pay special attention at third-party client sites. A violation found during an H-1B adjudication can result in approval for consular notification instead of change of status, or other adverse action.
5. Reinstatement and nunc pro tunc: not routine fixes:
Reinstatement (Form I-539) is discretionary. Nunc pro tunc relief is limited to certain late extensions or changes of status and does not cure unauthorized work, unauthorized CPT, or excess unemployment.
Risks of filing:
- USCIS may find you failed to maintain status.
- The filing may disclose unauthorized work or other violations.
- A denial can harm a later H-1B change of status.
- Unlawful presence consequences may arise, depending on your history.
- DHS may issue an NTA if you are removable.
6. Removal proceedings:
- A student who violates status may be removable under INA § 237(a)(1)(C)(i), and DHS may issue an NTA. A denial does not automatically trigger an NTA, but don’t assume it carries no enforcement risk. Being out of status, being in a period of authorized stay, and accruing unlawful presence are three different things. Each must be analyzed under the applicable regulations, including the September 2026 F-1 changes.
7. Before filing anything:
- An experienced attorney should review your SEVIS history, I-94, all I-20s, CPT/OPT authorizations, employment history, and H-1B filings. The review should determine whether reinstatement is available, whether retroactive relief makes sense, whether departure and consular processing is the better path, and whether filing creates new exposure. Don’t leave the U.S. or keep working without individualized advice.
8. Our message:
Students: Don’t rely on social media or the belief that an I-20 or pending application settles your status. Employers: Verify the employee’s immigration history and change-of-status eligibility, not just the EAD.
If you have violated status, exceeded unemployment limits, had a SEVIS termination, received an H-1B approval without an I-94, or are considering reinstatement, consult an experienced immigration attorney before filing anything.
Law Offices of Keshab Raj Seadie, P.C. | Over 25 years representing individuals and employers in U.S. immigration matters
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.
