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:
President Trump Signs Short-Term Funding Bill as DOL Restores FLAG System and Announces Emergency Relief for Shutdown-Affected Filings
President Donald Trump has signed a short-term continuing resolution extending federal government funding through January 30, temporarily averting another shutdown and restoring operations across key immigration agencies, including DHS, USCIS, the Department of Labor (DOL), and the Department of State’s visa services.
While the stopgap bill ensures short-term stability, lawmakers must still reach a long-term budget agreement before the January 30 deadline to prevent additional disruptions to immigration processing, labor certifications, and visa issuance.U.S. Proposes Major Crackdown on OPT Program, Threatening Post-Study Work Pathway for International Students
The Optional Practical Training (OPT) program — a highly popular pathway that allows international students on F-1 visas to work in the U.S. after graduation — is now facing one of the most significant crackdowns in its history. According to recent regulatory filings, the Department of Homeland Security has introduced a proposal that could terminate or severely restrict the program, citing concerns about fraud prevention, national security, and the need to align practical training more closely with academic objectives. The proposal follows increased government scrutiny, including surprise site-visits of OPT and STEM-OPT participants, and arrives amid growing political pressure to tighten oversight of employment-based immigration programs.
If implemented, the rule could dramatically reshape the post-study plans of hundreds of thousands of foreign students, especially those relying on the 12-month OPT period and the additional 24-month STEM extension.
Universities and employers warn that eliminating or limiting OPT would reduce America’s competitiveness in attracting global talent, disrupt recruitment pipelines, and push students toward countries with more stable post-study work options. The rule is expected to move through formal notice-and-comment procedures in late 2025, leaving current and future students in a state of uncertainty as they await clarity on the program’s future.OFLC Restores FLAG System and Announces Extensions for Shutdown-Affected Filings
In the wake of the month-long government shutdown from October 1 to November 2, 2025, the Department of Labor’s Office of Foreign Labor Certification (OFLC) has issued comprehensive guidance outlining deadline extensions and emergency filing procedures for employers impacted by the suspension of operations. During the shutdown, OFLC halted all processing activities, including access to the Foreign Labor Application Gateway (FLAG) and related systems. Employers were unable to file LCAs, PERM applications, prevailing wage requests, or respond to OFLC correspondence. Key relief measures include: 1. Mailed Submissions Will Be Honored:- Any PERM or prevailing wage application postmarked between October 1 and November 2 will be treated as timely filed.
- OFLC will manually enter mailed submissions into FLAG and assign case numbers.
- Email submissions will be considered received on the date sent.
2. Automatic 33-Day Deadline Extension:
- All RFIs, Audits, NOAs, NODs, and reconsideration deadlines falling within the shutdown window are automatically extended by 33 days.
- For PERM filings, recruitment or prevailing wage validity that expired during the shutdown may still be used within this 33-day grace period.
- OFLC has activated emergency regulations allowing waivers of normal filing timelines where employers demonstrate “good and substantial cause,” including shutdown-related delays.
- The extensions apply only to OFLC deadlines and do not modify deadlines before BALCA. Employers with BALCA matters must contact the Board directly.
State Department Issues New Public Charge Guidance for Consular Officers: Health Conditions May Now Trigger Public Charge Visa Refusals
Recent reports indicate that the U.S. Department of State (DOS) has issued a significant internal cable—dated around November 6, 2025—providing new instructions to consular officers on applying the INA §212(a)(4) public charge ground of inadmissibility. According to multiple sources, the cable substantially broadens the range of applicant characteristics that may trigger a public charge refusal, exceeding the scope of both existing Foreign Affairs Manual (9 FAM 302.8) guidance and the public charge instructions issued by USCIS on September 4, 2025.
The cable reportedly directs consular officers to take a more expansive approach to evaluating health, financial stability, education, skills, and past receipt of public assistance—creating new challenges for immigrant and nonimmigrant visa applicants alike.
Expanding Beyond 9 FAM: A More Aggressive Public Charge Framework:
While the cable reaffirms the core principle of evaluating the “totality of the circumstances” under 9 FAM 302.8—including age, health, family status, assets, financial condition, education, and skills—its new examples and expanded criteria reflect a far stricter interpretation.
The most notable expansion relates to health-based assessments:
Increased Scrutiny of Medical Conditions:
The cable instructs consular officers to:
- Examine medical reports for any chronic physical or mental condition, including Class B conditions that are not grounds for medical inadmissibility under INA 212(a)(1).
- Consider whether a condition could require:
- Long-term care
- Extensive medical services
- Future reliance on public assistance
If the medical report lacks detailed remarks on the severity or potential future impact of a condition, consular officers are instructed to issue a 221(g) refusal and return the medical exam to the panel physician for additional commentary.
Obesity and Other Non–Class B Conditions Now flagged for Public Charge Risk:
One of the most controversial components of the cable is its list of medical conditions that do not qualify as Class B findings but may nonetheless contribute to a public charge refusal.
Reports highlight obesity as a key example. The cable lists associated risks—including hypertension, diabetes, sleep apnea, asthma, osteoarthritis, gallbladder disease, and mental health disorders such as depression and anxiety—as potential future financial burdens.
This expansion suggests that even medically cleared applicants may face denial under 212(a)(4) based solely on perceived future health risks.
Education, Skills, and Past Assistance: Stricter Evaluations Suggested:
Beyond health factors, the cable reportedly enlarges the role of other considerations already acknowledged in the FAM:
Education & Skills:
The cable suggests that:
- Limited English proficiency
- Employment in low-skilled occupations
- Gaps in work history
may be viewed as indicators of potential financial instability and thus relevant to a public charge determination.
Past Public Assistance:
While 9 FAM 302.8-2(B)(1) lists numerous forms of assistance that cannot trigger 212(a)(4), the cable appears to take a less tolerant stance, including evaluating whether an applicant received public benefits outside the United States.
Affidavits of Support: Helpful, But No Longer Central:
The cable reinforces that the Form I-864, Affidavit of Support, while important, should not be treated as a controlling factor. Instead, consular officers are encouraged to scrutinize all “potentially derogatory” circumstances—even if the sponsor meets income and asset thresholds.
This approach arguably flips the “totality of the circumstances” standard on its head by focusing on identifying negative factors rather than balancing positives and negatives.
Applicability to Nonimmigrants, Including H-1B and L Visa Applicants:.
Although INA 212(a)(4) traditionally applies more broadly to immigrant visas, the cable reportedly reaffirms its relevance to nonimmigrant applicants as well.
The guidance mirrors the existing FAM distinction:
- Where 214(b) applies (e.g., B-1/B-2, F-1, J-1), officers should typically rely on 214(b) instead of 212(a)(4).
- Where 214(b) does not apply—notably H-1B and L visas—the public charge ground can be directly applied, increasing the risk of denial for employment-based applicants with health or financial vulnerabilities.
- There is no waiver for public charge inadmissibility under INA 212(a)(4).
- In rare circumstances, DOS may permit the applicant to post a public charge bond, but this is uncommon.
- Humanitarian categories—such as refugees, asylees, and VAWA applicants—remain exempt under statute.
- Greater likelihood of 221(g) delays while medical exams are revised.
- More refusals based on medical conditions, even those not traditionally linked to inadmissibility.
- Increased scrutiny of applicants with limited education, low-skilled work backgrounds, or prior public assistance.
- Heightened risk for H-1B and L nonimmigrant visa applicants previously unaffected by public charge findings.
Extending Your H-1B Beyond Six Years: Why Early PERM Filing and Backup Strategies Matter
The six-year limitation on H-1B status represents one of the most significant challenges facing foreign professionals working in the United States. However, with proper planning and strategic timing, you can extend your H-1B status well beyond this limit while your green card application is pending. Understanding when to file your PERM labor certification—and having backup options in place—can mean the difference between continuing your career in the U.S. or being forced to leave.
The Six-Year H-1B Limitation and Available Extensions: H-1B status is initially granted for three years and can be extended once for an additional three years, creating a maximum period of six years. However, there are important exceptions that allow you to extend beyond six years: One-Year Extensions (AC21 §106(a)): If a PERM labor certification or I-140 immigrant petition has been pending for at least 365 days, you can obtain H-1B extensions in one-year increments until a final decision is made on your green card application. Three-Year Extensions (AC21 §106(b)): If your I-140 has been approved and you’re waiting for your priority date to become current due to visa backlogs, you can receive three-year H-1B extensions indefinitely. Why You Should File PERM at Least 2.5 Years Before Your Six-Year Anniversary The critical window for ensuring continuous H-1B status lies in understanding PERM processing timelines and building in adequate buffer time. Here’s why the 2.5-year advance filing strategy is essential: PERM Processing Timeline Reality: A typical PERM labor certification process involves several stages:- Prevailing Wage Determination: 3-6 months (sometimes longer)
- Recruitment Process: 60-180 days for mandatory advertising and waiting periods
- PERM Application Preparation and Filing: 30-60 days
- PERM Adjudication: Currently 6-9 months, though this can vary significantly
- Potential Audit: If selected for audit, add another 6-12 months
When you add these timelines together, even a smooth PERM process typically takes 12-18 months from start to finish. If your case is audited or encounters any complications, you could easily be looking at 24-30 months or more.
The 365-Day Pending Requirement:
Remember, you need your PERM or I-140 to be pending for at least 365 days before your six-year anniversary to qualify for the one-year H-1B extension. This means:
- If you file PERM at the 2.5-year mark (30 months before your six-year date), it will have been pending for at least 365 days by month 42 of your H-1B status
- This gives you a comfortable 30-month runway for PERM processing before you hit the six-year limit
- You’ll have 18 months of cushion beyond the 365-day requirement
What Happens If You Wait Too Long:
If you file your PERM too close to your six-year anniversary:
- Scenario 1: You file at year 4.5 (18 months before the limit). If PERM takes 18 months to process, you’ll have exactly zero days of pending time when you hit your six-year mark—no extension possible.
- Scenario 2: You file at year 3.5 (30 months before the limit). If PERM is audited and takes 24 months total, you’ll still have only 6 months of pending time at your six-year anniversary—falling short of the required 365 days.
The 2.5-year advance filing provides the buffer you need to account for unpredictable delays, audits, or complications in the PERM process.
The NIW I-140 as a Strategic Backup Plan:
While employer-sponsored PERM is the traditional path to a green card, the National Interest Waiver (NIW) category provides a valuable backup strategy that you should pursue simultaneously. Advantages of NIW as a Backup:- No Labor Certification Required: Unlike PERM, NIW allows you to self-petition without going through the labor certification process, eliminating months of recruitment and prevailing wage determination requirements.
- Employer Independence: An NIW petition is not tied to a specific employer, giving you flexibility to change jobs without jeopardizing your green card application (once the I-140 is approved).
- Faster Processing Option: NIW I-140 petitions are eligible for premium processing (15-day adjudication), which PERM-based I-140s are not.
- Qualification Criteria: If you have an advanced degree (master’s or higher) and can demonstrate that your work is in the national interest of the United States, you may qualify for NIW.
- An approved NIW I-140 immediately qualifies you for three-year H-1B extensions
- A pending NIW I-140 counts toward the 365-day requirement for one-year extensions
- You maintain control over your green card process independent of your employer’s cooperation
Strategic Timing for NIW Filing:
Ideally, you should:
- Begin your NIW petition preparation while your PERM is being processed.
- File the NIW I-140 with premium processing if your PERM faces unexpected delays.
- Consider filing NIW even earlier than PERM if you have a strong case, as it provides immediate backup protection.
Additional Alternative Pathways
While PERM and NIW represent the primary strategies for extending H-1B status, other alternatives exist depending on your circumstances:
O-1A: Extraordinary Ability Visa:
The O-1A classification is available to individuals with extraordinary ability in sciences, business, education, or athletics. When to Consider O-1A:- You have national or international recognition in your field.
- You can demonstrate sustained acclaim through major awards, publications, or significant contributions.
- Your PERM is denied or significantly delayed.
- You want status that allows greater employer flexibility.
Key Advantages:
- No annual cap or lottery.
- Can be extended indefinitely in one-year increments.
- Provides a path to continue working while pursuing a green card through other channels.
- Not tied to the six-year H-1B limitation.
Considerations: O-1A has a high evidentiary bar and requires extensive documentation of your achievements. However, for professionals with strong credentials—particularly those who might qualify for EB-1A green cards—this can be an excellent bridge option.
Day One CPT F-1 Programs:
Some universities offer F-1 programs structured to provide Curricular Practical Training (CPT) authorization from the first day of enrollment. When to Consider Day One CPT:- Your H-1B has expired and you have no other status options.
- You need immediate work authorization while resolving green card issues.
- You’re willing to pursue genuine educational advancement.
Critical Caveats:
- USCIS scrutinizes Day One CPT programs heavily.
- Using Day One CPT can potentially impact future H-1B eligibility.
- The program must be legitimate, with real educational value—not just a work authorization scheme.
- This should be a last resort, not a primary strategy.
- Consider consulting with an experienced immigration attorney before pursuing this option.
Developing Your Comprehensive Strategy:
The most effective approach combines multiple strategies with careful timing:
Years 0-2.5 of H-1B Status
- Focus on your career and building a strong professional profile
- Begin documenting achievements for potential O-1A or EB-1A qualification
- Research your eligibility for NIW
Year 2.5-3 of H-1B Status
- Initiate PERM process with your employer
- Begin prevailing wage determination
- Start preparing NIW petition materials
Year 3-3.5 of H-1B Status
- Complete PERM recruitment
- File PERM application
- File NIW I-140 as backup (if qualified)
Year 4-6 of H-1B Status
- Monitor PERM processing
- Respond promptly to any audit requests
- If PERM faces significant delays, consider premium processing NIW I-140
- Evaluate O-1A option if primary strategies encounter problems
Common Mistakes to Avoid:
Starting Too Late: The most frequent error is waiting until year 4 or 5 to begin the PERM process, leaving insufficient time for the 365-day pending requirement.- Putting All Eggs in One Basket: Relying solely on PERM without considering NIW or other alternatives leaves you vulnerable to employer-related issues or processing delays.
- Ignoring Employer Stability: If your employer is experiencing financial difficulties or organizational changes, start your PERM and NIW processes even earlier than recommended.
- Failing to Document Achievements: Throughout your H-1B period, maintain detailed records of your professional accomplishments—these become crucial for NIW, O-1A, or EB-1A petitions.
Conclusion:
Extending your H-1B status beyond six years requires strategic planning and multiple backup options. Filing your PERM labor certification at least 2.5 years before your six-year anniversary provides the critical buffer needed to ensure continuous status eligibility. Simultaneously pursuing an NIW I-140 gives you employer-independent protection against unexpected complications. For professionals with exceptional credentials, the O-1A visa offers another valuable alternative, while Day One CPT programs should remain a last-resort option considered only with proper legal guidance. The key to success is early action, comprehensive planning, and maintaining multiple pathways to permanent residence. Don’t wait until you’re approaching your six-year limit to start thinking about these issues—by then, your options may be severely limited. This article provides general information and should not be considered legal advice. Immigration laws and processing times change frequently. Consult with an experienced immigration attorney to develop a strategy tailored to your specific situation.Federal Court Temporarily Halts USCIS Annual Asylum Fee Notices
A federal judge has temporarily blocked the implementation of the Annual Asylum Fee (AAF) requirement after issuing a stay against the U.S. Citizenship and Immigration Services (USCIS). The ruling, issued on October 30, 2025, comes from the U.S. District Court for the District of Maryland in Asylum Seeker Advocacy Project v. USCIS, et al., Case No. SAG-25-03299 (D. Md.).
Although USCIS publicly stated it “strongly disagrees” with the decision, the agency confirmed that it will comply with the Court’s order while further judicial review is considered.
Background on the Annual Asylum Fee:
The AAF was established under provisions outlined in the Federal Register notice titled “USCIS Immigration Fees Required by HR-1 Reconciliation Bill” (90 FR 34511), published July 22, 2025. Under the rule:
- Any asylum applicant with a pending Form I-589 for the entire FY 2025 would be required to pay the FY 2025 AAF.
- Applicants who filed after October 1, 2024 and whose cases remain pending for 365 days would owe the AAF on the one-year anniversary of filing and annually thereafter.
- USCIS planned to send personalized notices informing applicants when the fee was due, along with payment instructions.
- The FY 2025 fee would not be owed until USCIS formally issued the notice.
In line with the Federal Register guidance, USCIS began issuing individual AAF notices on or around October 1, 2025.
Impact of the Court’s Order:
With the October 30 stay in effect:
1. USCIS Has Paused All AAF Notices
- USCIS confirmed that no new Annual Asylum Fee notices will be issued until further order of the Court.
2. Applicants May Disregard Previously Issued Notices
- Any asylum applicant who already received a payment notice may ignore the notice for now.
- The temporary stay prevents USCIS from enforcing payment during this period.
3. No Refunds of Fees Already Paid
- USCIS stated it will not refund AAF payments already submitted.
- Applicants who paid should keep their receipts, as payment may still count toward future obligations depending on the outcome of litigation.
4. Updated Guidance Forthcoming
The agency will issue new instructions on AAF payment requirements as the litigation proceeds and the policy landscape evolves.
What Applicants Should Do Now:
- Do not pay the AAF at this time, even if a notice was received.
- Keep any previously issued receipts if you already made a payment.
- Monitor for future USCIS announcements, as obligations may resume depending on the Court’s ruling.
- Consult with an immigration attorney to assess how the pause may affect your asylum case or related filings.
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.
