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:
Federal Government Shutdown Halts DOL Immigration Functions, While USCIS Confirms Continued Processing of H-1B and Related Petitions
The federal government has entered a partial shutdown after Congress failed to pass a Fiscal Year 2026 appropriations bill or temporary stopgap measure before the September 30 deadline. This funding lapse has halted several key immigration functions at the U.S. Department of Labor (DOL) while the U.S. Citizenship and Immigration Services (USCIS) and Department of State continue limited operations supported by user fees.
Impact on Immigration Services:
Due to the shutdown, DOL immigration functions—including Labor Condition Applications (LCAs), prevailing wage determinations, and PERM labor certification processing—are temporarily suspended. This directly affects employers seeking to initiate or extend H-1B, H-1B1, or E-3 petitions and to file new PERM cases. No LCAs or prevailing wage requests can be certified until congressional funding is restored.
In contrast, USCIS has announced that it will continue to process H-1B, H-2A, H-2B, and CW-1 Form I-129 petitions despite the shutdown. However, USCIS recognizes that petitioners may face delays in obtaining required documentation—such as LCAs or temporary labor certifications—from the DOL. As a result, USCIS has confirmed that it will exercise discretion to excuse late filings for extensions or change of status requests if the petitioner can demonstrate that the delay was caused by the government shutdown.
USCIS emphasized that it will treat the shutdown as an “extraordinary circumstance beyond the petitioner’s control” in determining whether to excuse a failure to timely file. The agency also noted that it will continue to monitor the situation and issue further guidance as needed. (See USCIS Policy Manual, Vol. 2, Part A, Chapter 4.)
Other Programs Affected by Expiration:
Several programs that rely on congressional authorization have expired and will remain inactive until reauthorized by law:
- E-Verify employment verification system
- EB-4 non-minister religious worker program
- Conrad 30 J-1 physician waiver program
These programs are suspended pending congressional action.
What This Means for Employers and Applicants?
While USCIS and State Department operations remain open, the inability to obtain LCAs or prevailing wage determinations means many employment-based petitions cannot move forward until the DOL resumes operations. Employers should prepare for delays in filing new or amended H-1B petitions and PERM cases.
USCIS’s willingness to provide flexibility on late filings offers some relief, but HR teams and immigration counsel should document all attempts and delays caused by the shutdown to ensure eligibility for this discretionary exception once normal operations resume.
Outlook:
Budget negotiations are ongoing, but until Congress passes an appropriations bill or continuing resolution, DOL-related immigration processing will remain frozen. Immigration attorneys and employers should continue monitoring for official updates from USCIS, the Department of State, and the Department of Labor regarding the restoration of services.
Lawsuit Challenges New $100,000 H-1B Visa Fee:
A broad coalition has taken legal action against a recent H-1B visa policy change. On October 3, 2025, labor unions, universities, hospitals, and religious groups filed a lawsuit in California federal court to stop enforcement of a $100,000 fee introduced under President Trump’s latest proclamation.
The plaintiffs claim the president overstepped his legal authority by imposing what amounts to a unilateral tax without congressional approval. They argue the fee is causing serious disruptions across vital industries including healthcare, education, and nonprofit sectors.
The complaint highlights the abrupt rollout—the fee became effective within 36 hours of announcement—which created significant turmoil for employers and foreign workers. The coalition points to concrete impacts: stalled research initiatives, understaffed hospitals and schools, and widespread confusion for individuals planning to work in the United States.
The legal challenge centers on several key issues: whether the president has the power to create such a substantial fee, whether proper administrative procedures were bypassed, and whether the charge conflicts with existing congressional rules governing visa fees. The groups are requesting an immediate halt to the policy while the court considers the case.
The outcome will have major implications for universities, technology companies, healthcare facilities, and research institutions nationwide. The decision could determine not only the fate of this specific fee but also shape the broader landscape of skilled worker immigration to the U.S.
Understanding the $100,000 H-1B Fee: What Employers Need to Know
President Donald J. Trump signed a proclamation that sent shockwaves through the U.S. immigration and business communities by implementing a sweeping change to the H-1B visa program. The most dramatic element of this reform is a new $100,000 fee required for certain H-1B petitions—a move the administration describes as an “initial and incremental step” to protect American workers and curb program abuses.
What Is the $100,000 Fee?
The proclamation requires a $100,000 payment to accompany any new H-1B visa petitions submitted after 12:01 a.m. Eastern Daylight Time on September 21, 2025. This substantial fee represents a dramatic increase from previous H-1B filing costs and applies to petitions submitted for the 2026 lottery and beyond.
Who Must Pay the Fee?
The fee applies specifically to “new H-1B visa petitions.” According to the guidance from U.S. Citizenship and Immigration Services (USCIS), this includes:
- Initial H-1B petitions for foreign workers who have never held H-1B status.
- H-1B lottery registrations and subsequent petitions for the 2026 fiscal year and beyond.
- Any first-time H-1B employment authorization requests filed after the September 21, 2025 deadline.
What the Fee Does NOT Cover?
Importantly, the proclamation specifies several exemptions:
- H-1B renewals and extensions: The fee is explicitly described as a “one-time fee on submission of a new H-1B petition” and does not apply to renewal petitions.
- Previously issued H-1B visas: Any H-1B visas issued before September 21, 2025 are not affected.
- Petitions submitted before the deadline: Any petitions filed prior to 12:01 a.m. EDT on September 21, 2025 are grandfathered in.
- Travel rights: Current H-1B holders maintain their ability to travel in and out of the United States.
The Critical Question: Cap-Exempt Change of Status Applicants:
One of the most significant ambiguities in the proclamation concerns cap-exempt change of status applications. Specifically, the question arises: Are cap-exempt change of status applicants considered “new employment” and therefore required to pay the $100,000 fee?
To illustrate this uncertainty, one of our recent cap-exempt H-1B filings submitted after September 21 was approved, where we had marked new employment and change of status. However, this same individual may become subject to the $100,000 visa fee if he later appears at a U.S. consulate for H-1B visa stamping. This highlights the practical dilemma: while USCIS may process and approve such petitions domestically, the State Department could still apply the fee requirement abroad.
Cap-exempt organizations include:
- Institutions of higher education.
- Nonprofit entities affiliated with or related to institutions of higher education.
- Nonprofit research organizations.
- Government research organizations.
Understanding “New Employment”:
The proclamation uses the term “new H-1B visa petitions” without explicitly defining whether this includes:
- Cap-exempt petitions for workers already in the U.S. in another status (such as F-1 students changing to H-1B)
- Transfers from cap-subject to cap-exempt employers (or vice versa)
- Concurrent H-1B employment with cap-exempt organizations
While future USCIS guidance or FAQs may clarify this issue, the fundamental question remains: does “new” refer to the petition being filed for the first time, or to the creation of a new employment relationship regardless of cap status?
Possible Interpretations:
Interpretation 1: Literal Reading
- If “new H-1B visa petitions” is interpreted literally, cap-exempt change of status applications would likely be subject to the $100,000 fee, as they represent new petitions being filed—even though they don’t count against the annual H-1B cap.
Interpretation 2: Cap-Subject Only
- Alternatively, the fee could be interpreted to apply only to cap-subject petitions, since the proclamation’s stated purpose is to reform the lottery system and the broader competitive H-1B program. Cap-exempt organizations serve different policy objectives (education, research) and may warrant different treatment.
Interpretation 3: Change of Status vs. Consular Processing
- Another logical reading distinguishes domestic change of status filings (handled by USCIS) from consular visa issuance abroad. Since the proclamation repeatedly references “visas,” it could mean the $100,000 fee applies only when a visa is actually issued at a U.S. consulate.
The Stakes for Cap-Exempt Employers:
For cap-exempt employers—particularly universities and research institutions—the $100,000 fee would represent a substantial financial burden that could fundamentally alter hiring practices. Many of these organizations operate on limited budgets and hire H-1B workers for academic and research positions that may not command the same salaries as private sector roles.
If cap-exempt change of status petitions are subject to the fee, institutions may:
- Dramatically reduce international hiring.
- Focus on candidates already in the U.S. under other statuses
- Seek alternative visa classifications (such as O-1 for extraordinary ability)
- Face major disruptions to research programs dependent on global expertise
Whether a company or beneficiary will be subject to the proposed $100,000 H-1B fee or eligible for a National Interest Exemption (NIE) remains a gray area under the current proclamation. Based on prior practice, we anticipate that most large U.S. tech companies and bona fide in-house employers—as opposed to staffing or body-shop operations—will likely qualify for the NIE. During the COVID-19 pandemic, our firm successfully utilized this NIE protocol to facilitate visa approvals for critical workers, including employees of U.K. and multinational firms entering the U.S. for essential business operations. The same reasoning could apply here, as the proclamation leaves enough flexibility and interpretive room that, as one might say, “a truck could drive through it.”
Additional Reforms on the Horizon:
The $100,000 fee is described as just the beginning. The proclamation outlines several additional reforms under consideration:
1. Prevailing Wage Revisions:
- The Department of Labor will undertake rulemaking to “revise and raise the prevailing wage levels” for H-1B positions. This is intended to “upskill” the program by ensuring H-1B workers are hired only for higher-level positions and compensated accordingly.
2. Lottery Prioritization:
- The Department of Homeland Security plans to implement a lottery system that prioritizes “high-skilled, high-paid aliens” over those at lower wage levels. This would represent a significant departure from the current random selection process.
3. Future Reforms:
- The administration has indicated that additional reforms are under consideration and will be announced in the coming months, suggesting this is the first wave of a comprehensive overhaul.
Economic and Policy Implications:
The $100,000 fee has sparked intense debate about the future of skilled immigration in the United States. Proponents argue it will:
- Ensure only the most valuable positions justify H-1B sponsorship.
- Reduce potential abuse by employers seeking cheaper labor.
- Generate revenue while protecting American workers.
- Force companies to invest more seriously in recruiting and training domestic talent.
Critics contend the fee will:
- Disadvantage smaller companies and startups that cannot afford such costs.
- Push talent to competitor nations like Canada, the U.K., and Australia.
- Disproportionately impact universities and nonprofit research organizations.
- Create barriers for international students seeking to work in the U.S. after graduation.
What Employers Should Do Now:
Given the uncertainty surrounding key aspects of the proclamation, employers should:
- Review pending petitions: Ensure any time-sensitive H-1B petitions were filed before the arrival of higher prevailing wage.
- Consult USCIS guidance: Carefully review the official USCIS guidance document for specific implementation details.
- Assess cap-exempt status: Cap-exempt employers should seek clarification on whether the fee applies to their change of status petitions.
- Budget for compliance: Organizations planning to sponsor H-1B workers should incorporate the $100,000 fee into their 2026 budgets or talk to the attorney and qualify the company fOR NIE.
- Explore alternatives: Consider whether other visa categories (O-1, L-1, TN) might be appropriate for certain positions.
- Engage immigration counsel: Work with experienced immigration attorneys to navigate this rapidly evolving landscape.
- Monitor further guidance: Stay alert for additional clarifications from USCIS, Department of State, and CBP.
Conclusion:
The $100,000 H-1B fee represents a dramatic shift in U.S. immigration policy with far-reaching implications for employers, foreign workers, and the American economy. While the proclamation provides some clarity about what the fee covers, critical questions remain—particularly regarding cap-exempt change of status applications.
The bottom line: Whether cap-exempt change of status applicants are considered “new employment” subject to the $100,000 fee remains unclear from the proclamation’s text. Employers in cap-exempt categories should carefully review the detailed USCIS guidance and consider seeking advisory opinions or clarification from USCIS before proceeding with change of status petitions.
As the administration continues to roll out additional reforms to the H-1B program, one thing is certain: the landscape of skilled worker immigration in the United States is undergoing its most significant transformation in decades. Employers must stay informed, plan strategically, and be prepared to adapt to an evolving regulatory environment.
This article is for informational purposes only and does not constitute legal advice. Employers should consult with qualified immigration attorneys regarding their specific situations.
IMPORTANT: Time to Apply for U.S. Citizenship – Protect Your Status
In light of the increased immigration enforcement activities throughout the United States, I want to share some critical information about protecting your immigration status.
A green card is valuable, but it is not permanent in the way U.S. citizenship is. Green card holders can still be placed in removal proceedings and issued a Notice to Appear (NTA) for reasons such as minor criminal offenses, traffic violations, domestic disputes, or even misunderstandings involving moral conduct. Until you become a U.S. citizen, it is crucial to stay away from any legal trouble.
Why You Should Apply Now:
You may be eligible to apply for naturalization (Form N-400) if:
- You have been a green card holder for 5 years, or 3 years if married to a U.S. citizen.
- You have lived in the U.S. for at least half that time and avoided trips abroad longer than 180 days.
- You may file 90 days before reaching your 5-year (or 3-year) anniversary.
Before applying, consult an experienced immigration attorney — especially if you’ve had any arrests, charges, or prior legal issues.
Major Changes Effective October 20, 2025:
USCIS has announced significant updates making the citizenship process tougher:
1. Harder Civics Test:
- The new exam includes 128 questions and requires 12 correct answers out of 20 to pass. Applications filed before October 20 will continue under the simpler 2008 version.
2. Expanded “Good Moral Character” Review:
- Officers will now assess social behavior, community involvement, and even public or online statements to determine moral character.
3. Neighborhood & Workplace Checks:
- USCIS may now interview neighbors, coworkers, or employers to verify residence, character, and behavior — a practice not seen since the early 1990s.
4. Social Media Vetting:
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Applicants’ online presence will be reviewed more closely to ensure alignment with U.S. constitutional values and to detect potential red flags.
What You Can Do:
- Apply Before October 20, 2025: Filing now allows you to take the older, simpler civics test.
- Prepare Thoroughly: Study all 128 questions and practice oral responses.
- Obtain Testimonial Letters: From neighbors, colleagues, and community leaders attesting to your integrity and good conduct.
- Be Mindful Online: Avoid posts that could be misinterpreted or viewed as un-American.
- Stay Law-Abiding: Even minor offenses can jeopardize eligibility.
- Seek Legal Guidance: An attorney can help you file safely and confidently.
U.S. citizenship offers the strongest protection against deportation and ensures full participation in the nation you call home. Given the stricter rules and heightened scrutiny, now is the best time to apply — before the new changes take effect.
This article is for informational purposes only and does not constitute legal advice.
How to Survive a DOL Audit
The Department of Labor (DOL) has launched Project Firewall, a new enforcement initiative aimed at increasing the frequency and depth of H-1B employer audits and investigations. With additional funding and staff, the DOL is expected to be more aggressive in scrutinizing wage practices, LCA compliance, and third-party placements.
Important: When the DOL serves an audit notice, you may have as little as three (3) days to produce records and sit with a DOL officer. Preparation in advance is critical.
Risks of Non-Compliance:
- Repayment of back wages
- Civil fines and penalties
- Debarment from the H-1B program
- Cross-agency referrals to USCIS, DOJ, or EEOC
Steps to Manage a DOL Audit:
- Assign a Compliance Lead: Designate one person or team responsible for handling all DOL communications.
- Organize Documentation Early: Keep Public Access Files (PAFs), payroll, and contracts organized in a central location.
- Prepare a Response Protocol: Draft an internal playbook for who speaks to the investigator, how documents are presented, and how questions are escalated.
- Train Your Team: Ensure HR, legal, and management staff know their obligations and are trained on LCA/H-1B compliance.
- Control Third-Party Risks: If H-1B employees work at vendor/client sites, ensure contracts, worksite postings, and wage obligations are clearly documented.
- Maintain Consistency: Job titles, SOC codes, and wage levels must align across LCAs, H-1B petitions, and actual duties.
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Verify Posting Compliance: Confirm that LCA postings are done at all worksites and records of postings are preserved.
Conduct an Internal Audit Before DOL Knocks:
The best defense is preparation. Employers should:
- Audit Public Access Files (PAFs) – confirm completeness and accuracy for every LCA.
- Cross-check Payroll – ensure wages meet or exceed LCA requirements, period by period.
- Standardize Classifications – make sure SOC codes, job titles, and wages are applied uniformly.
- Review Vendor Oversight – verify compliance if H-1B employees are placed at third-party worksites.
Proactive Step – Call Us Before It’s Too Late
Don’t wait until the DOL letter arrives. You only get 3 days to respond once an audit is triggered.
Call our office at (212) 571-6002 to conduct a confidential internal compliance audit before the DOL comes knocking. We will review your files, identify risks, and prepare your team to survive an investigation.
This article is for informational purposes only and does not constitute legal advice.
FDNS Site Visit Preparation: Essential Compliance Guide
With DHS receiving billions in additional enforcement funding, FDNS site visits have become a critical compliance risk for employers sponsoring H-1B and L-1 workers. These unannounced visits can result in petition revocations, debarment, civil penalties, and fraud referrals if proper preparation isn’t in place.
Key Preparation Requirements:
Pre-Visit Readiness:
- Maintain centralized compliance binders at each worksite with all petition documents, LCAs, payroll records, and organizational charts.
- Train front desk staff to verify officer credentials and notify HR/legal counsel immediately.
- Ensure employees understand their petition details without appearing coached.
During the Visit:
- Verify DHS credentials before providing access.
- Maintain cooperative but controlled responses.
- Provide only requested documents.
- Ensure employee interviews align with filed petitions.
Post-Visit Actions:
- Document all visit details thoroughly.
- Debrief interviewed employees.
- Route follow-up requests through legal counsel.
Critical Compliance Areas:
H-1B Requirements:
- Maintain Labor Condition Applications and Public Access Files.
- Ensure continuous prevailing wage payments (no unpaid “benching”).
- File amended petitions for material worksite changes.
- Enhanced documentation for H-1B dependent employers.
L-1 Requirements:
- Document qualifying corporate relationships continuously.
- Verify specialized knowledge/managerial roles match petitions.
- Restrict client site placements to maintain employer control.
- Avoid “labor for hire” arrangements.
Enhanced Enforcement Environment:
With expanded DHS funding, expect:
- More frequent random site visits
- Sophisticated data analytics cross-referencing records
- Increased scrutiny of IT consulting firms
- Follow-up visits to previously inspected locations
The Bottom Line
FDNS site visits represent a fundamental shift from paper-based reviews to real-world verification. With DHS’s expanded resources, these visits will become more frequent and consequential. Successful compliance requires systematic preparation, accurate record-keeping, and proactive internal auditing.
The investment in robust compliance systems creates operational excellence, reduces legal risks, and enables sustainable growth in an increasingly regulated environment. Every site visit becomes an opportunity to demonstrate lawful employment practices when proper preparation is in place.
Take Action Now
Don’t wait for an unannounced FDNS visit to discover gaps in your compliance program. The stakes are too high and the consequences too severe.
Contact our immigration law office today at (212) 571-6002 to schedule a comprehensive compliance assessment and develop a customized FDNS site visit preparation plan for your organization.
Our experienced team will help you:
- Audit your current compliance systems
- Develop worksite-specific preparation protocols
- Train your staff on proper procedures
- Create comprehensive documentation systems
- Establish ongoing monitoring and internal audit processes
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.
