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:
To File or Not to File: What to Do When Your H-1B Grace Period or I-94 Expires During a Government Shutdown
The ongoing federal government shutdown has left many foreign professionals in a difficult position. Thousands of H-1B workers and their dependents are facing the end of their 60-day grace period or I-94 validity, yet the U.S. Department of Labor (DOL) and USCIS processing slowdowns are creating uncertainty about how to maintain lawful status.
If your H-1B grace period or I-94 expiration date is approaching while the shutdown continues, here’s what you need to know — and what you can do right now to protect your immigration status.
1. Two Immediate Options to Maintain Status: Option 1: File a Change of Status to B-2 or H-4 If you cannot file an H-1B transfer, extension, or amendment before your grace period or I-94 expires, the safest route is to file a change of status to either:- B-2 (Visitor for Pleasure) – to maintain lawful presence while waiting for the shutdown to end or to prepare your next move.
- H-4 (Dependent of an H-1B Holder) – if applicable, this allows you to remain in the U.S. lawfully while your spouse continues H-1B employment.
- A strong explanation of the extraordinary circumstances (such as the government shutdown),
- Evidence showing that you were otherwise maintaining lawful status and acted promptly, and
- Proof that you continue to meet all eligibility criteria for the requested classification.
- Placed in removal (deportation) proceedings,
- Issued a Notice to Appear (NTA) before an immigration judge, and
- Forced into a lengthy and costly legal battle to “clean up” your record.
Even if relief is available later, it can take years to undo the damage caused by falling out of status.
3. USCIS Guidance and Discretion:
Historically, USCIS has shown compassion in times of national emergencies — such as the COVID-19 pandemic or natural disasters — and the current government shutdown may qualify as an extraordinary circumstance.
According to USCIS policy, if a petitioner can show that the delay in filing was caused by events beyond their control, the agency may:
- Excuse late filings, and
- Approve the petition nunc pro tunc, effectively reinstating the applicant’s prior lawful status.
Still, discretion is not guaranteed. Each case is decided individually, based on documentation and timing.
4. Our Recommendation:
To minimize risk and preserve your options:
- File a Change of Status (B-2 or H-4) immediately if your grace period or I-94 is ending soon.
- Once the shutdown is resolved, consider refiling or amending your H-1B petition and requesting nunc pro tunc reinstatement if needed.
- Do not ignore your status expiration or rely solely on USCIS sympathy.
- Document everything — your attempts to file, DOL system downtime, employer communications, etc.
5. Filing a Nunc Pro Tunc Request to Reinstate Status in the U.S.:
If you have already fallen out of status, don’t lose hope. A nunc pro tunc request can sometimes reinstate your prior status and even result in a backdated I-94. Whether your lapse was due to a family emergency, employer oversight, or the ongoing shutdown, this remedy could help you remain lawfully in the United States.
Our experienced attorneys can:
- Prepare your Nunc Pro Tunc filing with a detailed legal memorandum,
- Demonstrate “extraordinary circumstances” under 8 C.F.R. § 214.1(c)(4), and
- Guide you through any subsequent status reinstatement or adjustment filings.
Contact the Law Offices of Keshab Raj Seadie, P.C.
If your H-1B status, grace period, or I-94 expiration is approaching during the shutdown, schedule a consultation immediately. We can evaluate your specific case and help you decide the best course of action to preserve your legal status and avoid removal proceedings.USCIS Clarifies Scope of $100,000 H-1B Fee Under Trump Proclamation
The U.S. Citizenship and Immigration Services (USCIS) has issued new guidance confirming that the controversial $100,000 H-1B filing fee—imposed under President Trump’s September 19, 2025 proclamation—will apply to most H-1B petitions filed for consular notification.
According to the update, the fee applies to new H-1B petitions filed on or after September 21, 2025, for beneficiaries outside the U.S. without a valid H-1B visa, or for cases requesting consular or port-of-entry notification. It may also apply if USCIS later determines a change of status or extension request is invalid due to the beneficiary’s ineligibility or departure from the U.S.
Exemptions:
The $100,000 fee does not apply to:
- Previously issued and valid H-1B visas;
- Petitions filed before September 21, 2025;
- In-country amendments, changes, or extensions approved by USCIS.
Petitioners must submit proof of payment through pay.gov at the time of filing or risk automatic denial. Only in “extraordinarily rare national interest cases” may the DHS Secretary grant an exemption.
Detailed Analysis:
Who Must Pay:
- The substantial fee applies when employers file visa petitions on or after late September 2025 for foreign workers who either lack valid H-1B documentation and are outside the United States, or when the petition involves consular notification procedures.
Who Is Exempt:
- Workers currently in the U.S. maintaining lawful status can continue employment without triggering the fee, provided their employers file for and receive approval of in-country status extensions or amendments. Changing employers also remains fee-free if the petition includes an approved extension component.
- International travel by workers whose petitions were approved before the policy took effect will not retroactively subject them to the charge.
- A narrow pathway exists for companies to avoid payment by demonstrating their employee’s presence serves critical national interests and that no American workers are available for the position. However, immigration officials have set remarkably high evidentiary standards, requiring advance Department of Homeland Security approval on a case-by-case basis—no blanket company or industry exemptions are permitted.
Payment Mechanics:
- Employers must submit the fee through the federal government’s online payment portal before filing their visa petition. Applications lacking either payment confirmation or an approved exemption will face immediate rejection without opportunity for additional documentation.
- Multiple lawsuits have been filed contesting the policy’s legality, with plaintiffs arguing it creates insurmountable barriers for smaller businesses and may violate administrative law principles. Court rulings on these challenges will determine whether the fee structure remains enforceable.
Strategic Implications:
- We advise employers to prioritize in-country petition filings, avoid consular processing when possible, and maintain meticulous payment documentation.
- Companies should also evaluate whether specific positions might qualify for the national interest exemption, though approval prospects appear limited given the stringent requireme.
Business Coalition Launches Second Legal Battle Against H-1B Fee Policy
The U.S. Chamber of Commerce has filed a federal lawsuit seeking to overturn the Trump administration’s controversial H-1B visa restrictions and accompanying $100,000 employer fee, marking the second major court challenge to the September executive order.
Case Details:
Filed October 16 in Washington D.C.‘s federal district court, the Chamber’s lawsuit argues the presidential proclamation illegally circumvents congressional authority over immigration law. The business organization contends the administration lacks legal grounds to impose such dramatic changes to the H-1B program without legislative approval.
The complaint alleges the fee and entry restrictions violate administrative law procedures by implementing major policy shifts without required public comment periods. Additionally, plaintiffs argue the proclamation fails to demonstrate how H-1B worker entry genuinely threatens national interests—a necessary finding under immigration statutes.
Broader Legal Picture:
This action follows an earlier October 3 lawsuit filed by Global Nurse Force in California’s Northern District, which similarly contests the policy’s constitutionality. That complaint specifically characterizes the six-figure charge as an unauthorized tax imposed without congressional consent.
Both legal teams are expected to request emergency court orders preventing the fee’s implementation while judges evaluate the policy’s legality. Federal immigration authorities have not begun collecting payments pending resolution of the litigation.
Industry Impact: The Chamber’s participation signals widespread corporate opposition to the restrictions, particularly among technology and healthcare sectors that rely heavily on international talent recruitment. Court decisions in these cases will establish important precedents regarding presidential power over employment-based immigration systems.Public Charge Policy Under Trump 2.0: USCIS Signals Stricter Review for Green Card Applicants
USCIS has issued a new Policy Memorandum dated September 4, 2025, reaffirming its commitment to a strict interpretation of the public charge inadmissibility rule under INA §212(a)(4). The memo, released during the second Trump administration, underscores that adjudicators must “strictly adhere to statutory and regulatory language” when assessing whether an applicant for permanent residence is likely to become a public charge.
While the memo does not reinstate the 2019 Trump-era Form I-944 or alter existing forms or evidence requirements, it serves as a clear reminder to USCIS officers that determinations are “inherently subjective” and based on the totality of the circumstances — including factors such as age, health, family status, financial resources, education, and skills, as well as the Affidavit of Support (Form I-864) when required.
Immigration attorneys anticipate increased Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs) in adjustment of status cases, especially where affidavits of support are insufficient or public charge questions on Form I-485 are incomplete. The memo also emphasizes review of the entire immigration record, including medical exams (Form I-693) and financial documents, signaling a potentially more rigorous scrutiny of applicants’ financial self-sufficiency. Though not a formal policy shift, this development appears to signal the administration’s intent to tighten public charge reviews and may foreshadow more conservative adjudication trends in family-based and certain employment-based green card cases. Key takeaway:- Applicants should ensure complete, accurate, and well-supported I-485 and I-864 filings, review potential public benefit use, and demonstrate financial stability through a holistic presentation to avoid delays or denials under the heightened scrutiny.
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.
