1. Quotas (annual limits): Non-immigrants versus immigrants

2. PERM labor certification versus PERM-exempt.

3. I-140 approval.

   1. H-1B status beyond six years in 3 year increments.

      • Not available to L-1.

   2. H-4 EAD work authorization.

   3. Retention of priority date -

      • Upgrades;

      • Downgrades.

Subscribe now

1. Overview of EB immigration options generally.

   
   a. Labor Market test.

   b. Exemption from Labor Market test.

   • Self-petition options (Exempt from Labor Market).

   • Employer options (Exempt from Labor Market).

     ---

2. Key Differences between EB-1A versus EB-1B.

   1. General requirements.

      1. Employer-sponsored.

         • “a department, division, or institute of a private employer if the department, division, or institute employs at least three persons full time in research activities and has achieved documented accomplishments in an academic field.”

      2. University/Academic versus Private Sector.

      3. “Ability to Pay.”

   2. Regulatory criteria/EB-1 eligibility.

      1. Three criteria + final merits (EB-1A) versus two criteria + final merits (EB-1B).

      2. Original contributions of MAJOR significance (EB-1A) versus original contributions (EB-1B).

      3. Comparative criteria.

         ---

1. Issues that Relate to Everyone:

   a. Temporary Visas.

   b. Strategies for U.S. Permanent Residence.

2. Physicians:

   a. Temporary Visas: J-1 clinical, J-1 research, H-1B, O-1.

   b. Strategies for U.S. Permanent Residence: Employer sponsorship, self-sponsorship (including P-NIW), marriage to a U.S. citizen.

   ---

3. Researchers:

   a. Temporary Visas: F-1, J-1 research, H-1B, O-1.

   b. Strategies for U.S. Permanent Residence: Employer sponsorship, self-sponsorship, marriage to a U.S. citizen.

   ---

4. The Visa Bulletin:

   a. Country of Birth versus Country of Citizenship.

   b. Cross-Chargeability.

   c. EB-1 versus EB-2.

   d. Priority Date Retention.

Share

This is a premium episode for paid subscribers. In this episode I will go through the USCIS policy manual and the official discretionary factors potentially used in I-485 adjustment of status adjudications. For those who want to “over-prepare” - I offer some practical tips.

Read more

The US Department of State announced on May 22, 2026, that the US government had issued all the EB-2 immigrant visas (green cards) available for Indians for the rest of the fiscal year, which ends on September 30, 2026.

The announcement is here.

This means that the EB-2 India cut-off date for the July 2026, August 2026, and September 2026 Visa Bulletin will likely be the letter “U” for “Unavailable.” I have discussed this concept previously here.

People with I-485 applications pending will continue to have those I-485 applications stay in process and people seeking interim benefits like EAD work permits and AP travel authorization should still, in theory, be able to get the I-765s for EADs and I-131s for AP travel authorization approved. Also, for those who need to renew their EAD or AP, renewals should be permissible.

USCIS had been approving a high number of EB-2 India I-485 applications in the prior 3 months particularly because the “pause policies” limited I-485 approvals for so many other nationalities. In a zero sum game, the Indians have been benefiting while the Iranians and Nigerians (among others) were stalled.

Using up all the green cards in a given fiscal year is, in my opinion, a good thing, because the alternative is that the US government fails to use all the green cards. But this would be the earliest use of all the green cards for a given nationality and preference category in a long time, perhaps ever!

Looking ahead, I have mentioned previously that there could be a large forward movement in cut-off dates in October 2026, akin to October 2020 and October 2021, due to spillover. For that discussion, go here.

All this is separate from the USCIS policy memo on Adjustment of Status that gained a lot of attention on Friday, May 22. I have also discussed that policy memo although I did receive feedback that my discussion of the Adjustment of Status policy memo left people more confused than when they started!

Happy Tuesday!

Share

• May 21, 2026, Policy Memo on Adjustment of Status as Administrative Grace (PM-602-0199): Here

  • “Failure to depart” as a negative discretionary factor.

    ---

• August 15, 2025, Policy Memo on Good Moral Character Standard for Naturalization (PM-602-0188): Here

• August 19, 2025, Policy Alert on Anti-Semitic/Anti-American Behavior as “overwhelmingly negative” discretionary factor (PA-2025-16): Here

• September 4, 2025: Policy Memo (PM-602-0190): Related to Public Charges.

• September 20, 2025: $100k H-1B Surcharge Memo.

• November/December 2025 and Jan 1, 2026: Various memos pausing processing of DV lottery cases, asylum cases, and benefits for people of 39 “high-risk” countries

• November 2020 Policy Memo on Discretionary Factors in Adjustment of Status: Here

• Family and Community Ties - Positive:

  • Family ties to the United States and the closeness of the underlying relationships.

  • Hardship to the applicant or close relatives if the adjustment application is denied.

  • Length of lawful residence in the United States, status held and conduct during that residence, particularly if the applicant began his or her residency at a young age.

• Family and Community Ties - Negative:

  • Absence of close family, community, and residence ties.

• Immigration Status History - Positive:

  • Compliance with immigration laws and the conditions of any immigration status held.

  • Approved humanitarian-based immigrant or nonimmigrant petition, waiver of inadmissibility, or other form of relief and the underlying humanitarian, hardship, or other factors that resulted in the approval.

• Immigration Status and History - Negative:

Violations of immigration laws and the conditions of any immigration status held.

• Current or previous instances of fraud or false testimony in dealings with USCIS or any government agency.

• Unexecuted exclusion, deportation, or removal orders

• Business, Employment, and Skills - Positive:

  • Property, investment, or business ties in the United States.

  • Employment history, including type, length, and stability of the employment.

  • Education, specialized skills, and training obtained from an educational institution in the United States relevant to current or prospective employment and earning potential in the United States.

• Business, Employment, and Skills - Negative:

  • History of unemployment or underemployment.

  • Unauthorized employment in the United States.

  • Employment or income from illegal activity or sources, including, but not limited to, income gained illegally from drug sales, illegal gambling, prostitution, or alien smuggling

• Community Standing and Moral Character - Positive:

  • Respect for law and order, and good moral character (in the United States and abroad) demonstrated by a lack of a criminal record and evidence of good standing in the community.

  • Honorable service in the U.S. armed forces or other evidence of value and service to the community.

  • Compliance with tax laws.

  • Current or past cooperation with law enforcement authorities.

  • Demonstration of reformed or rehabilitated criminal conduct, where applicable.

  • Community service beyond any imposed by the courts.

• Community Standing and Moral Character - Negative:

  • Moral depravity or criminal tendencies (in the United States and abroad) reflected by a single serious crime or an active or long criminal record, including the nature, seriousness, and recent occurrence of criminal violations.

  • Lack of reformation of character or rehabilitation.

  • Public safety or national security concerns.^[43]

  • Failure to meet tax obligations.

  • Failure to pay child support.

  • Failure to comply with any applicable civil court orders.

• Other - Positive

  • Absence of significant undesirable or negative factors and other indicators of good moral character in the United States and abroad.

• Other - Negative

  • Other indicators adversely reflecting the applicant’s character and undesirability as an LPR of this country.

Practical Tips:

• When in the United States, act consistently with the visa issued to you.

• If you enter on a temporary visa, particularly ESTA/Visa Waiver, a B visa, an F visa, or a J visa, understand your intent for that admission is temporary.

• Regarding I-140 and I-130 preparation - plan for immigrant visa processing unless you have a truly dual intent visa (H-1B/H-4, or L-1/L-2).

  • Almost dual intent (TN, H-1B1, R-1, O-1, E-1/E-2/E-3) versus truly dual intent (H-1B/H-4, or L-1/L-2).

If you are reading this before June 17, then here is a Shameless Plug to seek your vote for the Immie Award as People’s Choice Thought Leader:

https://www.buildfellowship.com/immies-2026/nominee/robert-webber

Share

1. Felonious Gru and the Freeze Ray.

2. USCIS Pause Policies:

   1. 39 Countries full pause.

   2. 75 Countries - immigrant visa processing pause.

3. Visa Bulletin Cut-Off Dates.

   1. Fiscal year starts October 1.

   2. Two Charts: Chart B early in the Year, then Chart A.

   3. India, China, RoW (Rest of World), Mexico EB-3, Philippines EB-3

   4. “C” (Current) versus “U” (Unavailability)

   5. The importance of Spillover and the lesson of October 2020.

   6. June 2026 Visa Bulletin. End Note D:

Preparing -

• International travel.

• Documents - Birth and Marriage records.

• Medical exams.

Share

1. U.S. Citizens: Passport cards and I-130s.

2. Green Card Holders: Copies of green cards and re-entry permits.

3. People in the United States on Temporary Visas:

   1. Caution in international travel.

   2. Visa processing - scrutiny on social media and political views.

   3. Pause policies implicating 39 countries + “List of 75 Countries”

4. Challenges in Obtaining an approved I-140:

   1. Slow PERM.

   2. High rate of denials for EB-2 NIW.

   3. High rate of denials for EB-1A.

   4. The appeal of EB-1B and EB-1C.

5. H-1B cap changes, H-1B layoffs.

6. F-1s

Share

• What is PERM?

• What is EB-2 NIW?

After October 2025 Visa Bulletin is issued, no movement on cut-off dates for Chart B for November 2025 Visa Bulletin, then December 2025 Visa Bulletin.

• Will dates move forward in January, or will USCIS honor Chart A?

• The value of an I-824 for optionality.

Bob’s chart tracking October Visa Bulletin Chart B for EB-2 Rest of World (RoW), going back to 2022:

[EDIT: This podcast episode has erroneously information on the November 2025 EB-3 cut-off date. I realized the error after completing the podcast. The date for December 2025 EB-3 India is correct. I was just wrong in how much the dates moved from November to December. I regret the error.]

The US Department of State has issued the December 2025 Visa Bulletin. The December 2025 Visa Bulletin can be found here.

This Chart shows the movement for Employment-Based (EB) cut-off dates for Chart A. There was no movement for EB cut-off dates for Chart B.

USCIS is honoring Chart B for filing new I-485 applications for December 2025, but it might be the last month this fiscal year that USCIS is honoring Chart B. People whose priority date is current per Chart B should be sure to file I-485 applications in December or risk being unable to file in January.

• The Basics: EB-2 + NIW.

• Matter of NYSDOT.

• Matter of DHANASAR (December 2016).

• Biden “force multiplier” memos (January 2021).

• Pigs get fat, hogs get slaughtered.

  • The role of the H-1B cap lottery.

  • The role of slow processing of PERM labor certification applications.

  • The role of the Visa Bulletin.

  • Rolling recessions and white collar job losses.

  • The role of gurus and shaman and AI toolkits.

• January 2025 Policy Guidance.

• Premium versus regular processing.

• RFEs, denials, appeals, litigation.

• Job changes for people on temporary visas versus permanent resident (green card processing).

• Job changes and priority date retention (I-140 approved) but no I-485 pending.

• Job changes after I-485 filed: Adjustment of Status (AoS) job portability.

  • EB-1A and EB-2 NIW exempt.

  • EB-1B and EB-1C, plus EB-2 PERM and EB-3 eligible.

    • I-140 approved.

    • I-485 pending 180+ days.

    • “Same or similar occupation.”

      • USCIS guidance here.

    • ONET code crosswalk: Here.

    • AC21 AoS portability versus Visa Bulletin 2 charts.

    • Supplement J: https://www.uscis.gov/i-485supj

      • USCIS policy manual on job portability (job changes) here.

Subscribe now

• EB immigration (I-140) versus FB immigration (I-130)

• EB immigration has EB-1 and EB-2 and EB-3 versus FB immigration has F-1, F-2A, F-2B, F-3, F-4, but importantly FB immigration has “immediate relative.”

• The perks of “immediate relative” status -

  • No Visa Bulletin limits.

  • Potential ‘forgiveness’ for overstay and work without authorization.

• Who are immediate relatives?

  • Spouses of US citizens.

  • Unmarried children under the age of 21.

  • Parents of US citizens, when the US citizen is at least 21 years old.

• Spouses of US citizens are subject to “conditional” permanent residence if married less than 2 years, to prevent fraud.

• Note that spouses of US permanent residents are NOT immediate relatives, they are F-2A immigrants.

• Spouses of EB immigrants who are married prior to EB green card approval are derivative of the EB case - either as I-485 applicants or “follow-to-join” immigrant visa applicants; but spouses of permanent residents are F-2A immigrants subject to the Visa Bulletin.

• November 2025 Visa Bulletin (Chart A for FB Immigration):

• Note that adopted children and step-children have special considerations on eligibility which need to be analyzed carefully on whether they qualify as “immediate relatives.”

• Note that a US citizen who has a child outside the United States - that child MIGHT be a US citizen at birth and eligible for a US passport.

• FB immigration begins with an I-130 petition (relative petition), filed with USCIS. Premium processing is NOT available.

• The FB immigrant is potentially eligible for I-485 adjustment of status or immigrant visa processing at a US consulate in the relatives’ home country.

• Key issue in the I-130 is documenting the relationship with qualifying documentation of the legal marriage or birth.

• An I-130 filing demonstrates immigrant intent.

• Entering on a visitor visa or F-1 visa or J-1 visa is entering the United States on a temporary visa with temporary intent.

Share

Hi Substack Subscribers -

This is just a short post in appreciation of you all, including clients and colleagues (past and present) who have supported our firm.

This month (August 2025), our firm was ranked #253 in the Inc. 5000 ranking of fast-growing private businesses in the United States. This ranking put us as the 3rd fastest growing business on the list for businesses based in Minnesota and the 6th fastest growing law firm in the country, as measured by the 3 year qualifying period.

We continue to represent employers and individuals on U.S. visa strategies in a challenging policy and processing environment.

In an article by Tekendra Parmar that accompanied the list, I was quoted as saying “the system is fairly dysfunctional.” I stand by that!

I also stand by my quote that “when things are complicated, that’s when people want a good lawyer.”

There are many more topics about U.S. immigration law and policy to cover in this newsletter and the related podcast. I hope to devote more time to it in the coming days and months.

But again, thank you!

Read more

The August 2025 Visa Bulletin has been released. You can find it here.

I have made a comparison chart from the July 2025 Visa Bulletin:

The End Notes from the August 2025 Visa Bulletin:

• Overview of the Visa Bulletin and the Annual Limit of EB immigrant visas. (See Episode 3).

• Two charts. (See Episode 15A).

• The importance of End Notes.

• “C” and “U” on the Visa Bulletin.

• The promise of the Oct 2025 Visa Bulletin and possible spillover.

This podcast episode builds on an article I wrote with my colleague and law partner, Tom Oja, which can be found here.

This podcast episode provides an overview on certain topics, so people with advanced knowledge on these topics may be a bit bored!

High Level Ways to Immigration to the US

• Family-Based (FB) Immigration; or

• Employment-Based (EB) Immigration; or

• Asylum/Refugee Status; or

• DV (Diversity) Green Card Lottery.

Overall Slow Process Means Most People Come on Temporary Visas First

Current Challenges with PERM.

• Employer issues: Layoffs.

• Labor market issues: Qualified applicants (especially in IT/Software/Tech).

• 9141 prevailing wage determinations: Slow and high.

• 9089 processing: Record slow. More audits?

Current Challenges with EB-2 NIW.

• “Pigs get fat, hogs get slaughtered” - particularly on premium process EB-2 NIW cases.

• January 2025 Policy guidance and the Death of Dhanasar.

The Promise of EB-1B.

• Lack of Employer Awareness and/or Interest

Evergreen Issues with EB-1A and EB-1C.

• EB-1A suffers from similar issues as EB-2 NIW in terms of the excesses of self-petitioners.

• EB-1C requires working abroad which many people don’t want to do.

The Elephant in the Room: Visa Bulletin Cut-Off Dates.

• Persistent Backlogs in EB-2 and EB-3 for all nationalities.

• Persistent Backlogs for EB-1 India and China.

• No relief in sight.