USCIS Mandatory E-Filing Rule 2026: Which Forms Must Be Filed Online, Form I-936 Waivers, Deadlines, Costs, and Risks

By Richard T. Herman, Esq. — Immigration Attorney with More Than 30 Years of Experience

Last updated: August 30, 2026

As of August 30, 2026, USCIS has not announced a first form-specific mandatory e-filing date under the USCIS mandatory electronic filing rule 2026. Most benefit forms that USCIS merely makes available online can still be filed on paper if the current form instructions permit it. However, several electronic-only processes already exist under separate authority or program rules, including Form G-325R alien registration, Form I-129H2A itself, H-1B cap electronic registration, and Form I-134A in a program that is accepting or inviting that request. The new rule allows USCIS to add many more mandatory forms after the form has been electronically available for more than 180 days and USCIS posts at least 60 days’ notice. When a mandate takes effect, an unauthorized paper filing may be rejected.

Current Status: Is USCIS E-Filing Mandatory Right Now?

Understanding the USCIS Mandatory Electronic Filing Rule 2026

The new regulatory framework is effective, but USCIS has not yet made every immigration application or petition electronic-only.

As of August 30, 2026:

• The Mandatory Electronic Filing interim final rule has been effective since August 11, 2026.
• The rule gives USCIS authority to impose mandatory e-filing form by form, category by category, or in other specified circumstances.
• USCIS has not announced a first form-specific 60-day mandatory-filing notice under this new rule.
• No generally paper-eligible benefit form has a confirmed future date on which paper filing will end under the August 11 framework.
• USCIS must post a form-specific notice on its website at least 60 days before a paper option ends.
• The new Form I-936 waiver process must be operational before a form-specific mandate has practical effect.
• Existing filing instructions remain controlling unless USCIS publishes a specific mandatory e-filing notice.
• Public comments on the interim final rule are due October 13, 2026.

The most important point is simple: the rule is effective, but the mandate will be implemented separately. Applicants, petitioners, employers, and attorneys must check the current instructions for the exact form and eligibility category on the date of filing.

 

 

Are Any USCIS Forms Required to Be Filed Electronically Today?

Yes—but not because the August 11, 2026 rule suddenly made every USCIS benefit form online-only. A small number of forms or preliminary processes already have an electronic-only filing method under separate program rules or established USCIS procedures.

Form or process	Electronic filing required as of August 30, 2026?	What filers need to know
Form G-325R, Biographic Information (Registration)	Yes.	USCIS states that each person required to submit Form G-325R must use that person’s own individual USCIS online account. This includes a child under age 14. See the USCIS Form G-325R page and Alien Registration Requirement page.
Form I-129H2A, Petition for a Nonimmigrant Worker: H-2A Classification	Yes, for Form I-129H2A itself.	USCIS’s current online-forms list says Form I-129H2A can only be filed online through PDF upload. Counsel should still verify whether the particular H-2A case must use I-129H2A or whether another authorized petition route applies. See USCIS Forms Available to File Online.
H-1B cap electronic registration	Yes, during the applicable registration period.	A prospective cap-subject petitioner or its attorney must use a USCIS online account to register each beneficiary. The later Form I-129 petition is a separate filing and may have an authorized paper or online method. See the USCIS H-1B Electronic Registration Process and HLG’s H-1B immigration legal-services guide.
Form I-134A, Online Request to Be a Supporter and Declaration of Financial Support	Online only when the applicable program is accepting or inviting the filing.	USCIS does not accept Form I-134A by mail. Eligibility and availability depend on the specific parole process, and USCIS has paused or changed acceptance in some programs. See the USCIS Family Reunification Parole FAQs and the USCIS I-134A update.

These examples should not be confused with forms that merely may be filed online. For many forms—including Form I-90, Form I-130, Form I-485 in designated categories, Form I-539, Form I-765, and Form N-400—online filing remains optional when the current instructions continue to authorize paper filing.

The filing method may also vary by category on the same form. A form may be available online for one eligibility basis but paper-only for another. “File Online” on a USCIS webpage does not necessarily mean “paper prohibited.”

Has USCIS Announced a Future Mandatory E-Filing Date Under the New Rule?

No—not as of August 30, 2026. The August 11 rule is an enabling framework. It does not identify the first form that USCIS will mandate, and it does not establish a calendar date on which all paper filing will end.

When USCIS selects a form or category, it must post a notice on its website at least 60 days before rejecting paper solely because the filer used the wrong channel. For a newly electronic form, the online option must also have been available for more than 180 days.

This means there are three questions to ask every time:

1. Is online filing available for this exact form and eligibility category?
2. Is online filing optional or required?
3. Has USCIS posted a form-specific effective date ending paper filing?

Do not confuse a new form-edition deadline with a mandatory e-filing date. For example, USCIS announced new editions of Forms I-539 and I-765 effective September 15, 2026, and a new Form I-485 edition effective September 18, 2026. Those announcements require use of the correct edition after the stated date; they do not, by themselves, prohibit an otherwise authorized paper filing. See the USCIS alerts for Forms I-539 and I-765 and Form I-485.

Key Facts About the 2026 USCIS E-Filing Rule

Question	Answer
What is the rule?	DHS’s interim final rule titled Mandatory Electronic Filing (e-Filing), published at 91 Fed. Reg. 51924.
When did it take effect?	August 11, 2026.
Are all USCIS forms online-only now?	No. The rule creates the framework for later form-specific mandates.
When may USCIS mandate e-filing?	After a benefit request has been available for e-filing for more than 180 days.
How much notice must USCIS give?	At least 60 days on the USCIS website.
Can only part of a form be covered?	Yes. USCIS may mandate e-filing only for specified categories, classifications, or types of requests filed on the same form.
What counts as e-filing?	A guided online form, an approved web portal or interface, or an approved PDF upload through a USCIS online account.
What happens to a prohibited paper filing?	It may be rejected, meaning it generally receives no protected filing or receipt date.
Is there an exception?	USCIS may approve a discretionary waiver when e-filing would cause undue hardship.
What is the waiver form?	Form I-936, Request for Waiver of E-Filing Requirement.
What is the I-936 fee?	$25, subject to limited fee-waiver eligibility.
Does filing I-936 preserve a deadline or priority date?	No. The benefit request is filed only when USCIS actually receives the later qualifying submission.
How long does an approval last?	Generally 30 days from issuance for a new filing; USCIS states that it must receive the paper form within 33 calendar days of issuance.

What Exactly Did the New Rule Change?

The rule changes the legal filing framework in four principal ways.

1. USCIS Can Make an Online Filing Method Mandatory

New 8 C.F.R. § 103.2(a)(1)(ii) permits USCIS to require electronic filing when all three conditions are met:

1. The form has been available for e-filing for more than 180 days.
2. USCIS exercises its discretion to mandate electronic filing generally or in specified circumstances.
3. USCIS publishes at least 60 days of advance notice on its website, including the date on which the paper version will no longer be accepted.

This is not necessarily an all-or-nothing decision. USCIS can make e-filing mandatory for only one classification or eligibility category on a multi-purpose form while continuing to accept paper for other categories.

2. “E-File” Now Has a Broad Regulatory Definition

The new definition in 8 C.F.R. § 1.2 covers electronically submitting a benefit request, supporting evidence, documents, notices, and communications in a manner approved by USCIS. It can include:

• Completing a guided form in a USCIS online account
• Filing through an approved web portal or electronic interface
• Uploading a completed form as a PDF through an approved account
• Using another electronic method USCIS develops and approves in the future

Therefore, “mandatory e-filing” does not always mean entering every answer into a guided questionnaire. In some categories, a filer may complete the official PDF and upload it with the supporting evidence.

3. USCIS Created a Paper-Filing Waiver Process

New 8 C.F.R. § 103.2(a)(1)(iii) authorizes USCIS to waive mandatory e-filing in an individual case. A person or entity must first request permission to file on paper using Form I-936 and demonstrate that electronic filing would create undue hardship.

4. USCIS Created a $25 I-936 Fee and Limited Fee Waivers

New 8 C.F.R. § 106.2(a)(64) establishes a $25 fee for Form I-936. DHS says the fee is intended to offset part of the cost of reviewing waiver requests and discourage unsupported or frivolous requests.

The rule limits fee waivers for Form I-936 to circumstances covered by 8 C.F.R. § 106.3(a)(3)(iii), including certain filings connected to:

• VAWA self-petitioners
• T nonimmigrant status
• U nonimmigrant status
• Certain battered spouses and children
• Special-rule cancellation for certain battered spouses or children
• Temporary Protected Status

This is narrower than the general list of USCIS forms for which a person may sometimes obtain a fee waiver based on inability to pay. A low income alone does not necessarily make the I-936 fee waivable if the requested paper filing is outside the categories protected by the new regulation.

What the Rule Does Not Do

The new rule does not:

• Make every immigration form online-only on August 11, 2026
• Change the substantive eligibility requirements for a visa, green card, EAD, travel document, asylum, or citizenship
• Guarantee faster adjudication or approval
• Eliminate the burden of proving eligibility
• Prevent USCIS from issuing a Request for Evidence, Notice of Intent to Deny, interview notice, or denial
• Make every eligibility category on an electronically available form eligible for online filing
• Preserve a filing date merely because a filer created an account, saved a draft, requested a waiver, or uploaded some documents
• Automatically excuse a late filing caused by internet problems or a portal outage
• Apply the same way to Department of State visa applications, immigration court filings, or every DHS records request

Online validation is an intake safeguard, not a legal opinion. A form that passes the portal’s required-field checks can still be incomplete as a matter of immigration law or unsupported by the required evidence.

When Will a Particular Form Become Mandatory Online?

For a form that is newly made available electronically, the sequence is:

Stage	Minimum requirement
Voluntary online availability begins	USCIS launches an approved electronic filing method.
Testing and voluntary-use period	More than 180 days.
USCIS decides whether to impose a mandate	USCIS may consider system readiness, related forms, the filing population, socioeconomic conditions, and access to technology.
Public notice	At least 60 days on USCIS.gov before the paper option ends.
Mandatory e-filing date	Paper filings are no longer accepted in the circumstances identified in the notice, unless USCIS approved a waiver.

For forms that had already been electronically available for more than 180 days when the rule took effect, USCIS does not have to repeat the 180-day period. It may begin the form-specific process by publishing the required 60-day notice once the I-936 collection is approved and usable.

USCIS is not required by this regulation to publish each implementation notice in the Federal Register. The operative notice may appear on the USCIS website. Attorneys and filers cannot safely monitor only new regulations; they must also monitor USCIS form pages, newsroom announcements, filing-instruction updates, and online-filing notices.

Which USCIS Forms Could Be Affected?

The rule states that, as of December 16, 2025, USCIS offered electronic filing for 22 forms and that those forms had been available long enough to satisfy the 180-day condition. The rule’s historical table included:

• Form AR-11, Alien’s Change of Address Card
• Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative
• Form G-325R, Biographic Information (Registration)
• Form G-639, Freedom of Information/Privacy Act Request
• Form I-90, Application to Replace Permanent Resident Card
• Form I-129, Petition for a Nonimmigrant Worker
• Form I-130, Petition for Alien Relative
• Form I-131, Application for Travel Documents, Parole Documents, and Arrival/Departure Records
• Form I-140, Immigrant Petition for Alien Workers
• Form I-539, Application to Extend/Change Nonimmigrant Status
• Form I-589, Application for Asylum and for Withholding of Removal
• Form I-751, Petition to Remove Conditions on Residence
• Form I-765, Application for Employment Authorization
• Form I-821, Application for Temporary Protected Status
• Form I-821D, Consideration of Deferred Action for Childhood Arrivals
• Form I-907, Request for Premium Processing Service
• Form I-912, Request for Fee Waiver
• Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings
• Form N-400, Application for Naturalization
• Form N-565, Application for Replacement Naturalization/Citizenship Document
• Form N-600, Application for Certificate of Citizenship
• Form N-600K, Application for Citizenship and Issuance of Certificate Under INA § 322

This is a snapshot from the rule, not a declaration that every form or every category above is now online-only. For example, the rule separately explains that FOIA and Privacy Act requests are governed by a different electronic-submission system and are not part of this benefit-request waiver framework.

USCIS continues adding forms and categories. A newly launched online option generally must remain available for more than 180 days before USCIS can mandate its use. Always review the current USCIS list of forms available to file online and the individual form page.

Guided Online Filing Versus PDF Upload: What Is the Difference?

Both methods can satisfy a mandatory e-filing requirement if USCIS authorizes the method for the filing.

Feature	Guided online filing	PDF Intake (PDFi)
How the form is prepared	The filer answers questions inside the USCIS account.	The filer completes the official PDF and uploads it.
Error checking	The system may prevent submission when required fields, a signature, or payment are missing.	USCIS applies automated and Lockbox-style acceptance checks after upload.
Receipt	Often generated promptly in the online account after a successful submission.	Acceptance may occur after intake review; procedures and notice delivery can vary by form.
Best feature	Interactive prompts and immediate correction of some intake defects.	Preserves a form-like workflow and may work better for complex preparation software.
Main limitation	The question flow may not mirror the paper form and can be difficult to review as one integrated record.	It can still be rejected and provides fewer guided-validation benefits.

For complex cases, the ability to upload a PDF does not eliminate evidence-organization problems. USCIS itself acknowledges file-size restrictions, difficulty submitting related forms together, and the greater confidence some filers have in a unified paper package.

What Happens If Someone Files on Paper After E-Filing Becomes Mandatory?

The most likely consequence is rejection.

A rejection occurs at intake. USCIS generally does not treat the application or petition as properly filed, does not conduct a merits adjudication, and does not preserve the filing date merely because the package arrived at a Lockbox.

That can have consequences far beyond the inconvenience of starting again:

• A family- or employment-based petition may lose an earlier priority date if no other rule preserves it.
• A person may miss an I-94 expiration date or a deadline to extend or change nonimmigrant status.
• An employee may lose time needed for work-authorized status or an EAD renewal.
• A conditional resident may miss the Form I-751 filing window.
• An asylum applicant may face a one-year-filing-deadline problem.
• A naturalization applicant may miss the deadline for Form N-336 review.
• A motion or appeal may become untimely.
• A child may face an age-out or Child Status Protection Act dispute.
• A delayed application may interrupt advance parole, employment authorization, or other ancillary benefits.
• An employer may miss a requested start date, cap-related deadline, or status-preservation window.

Filing-channel compliance must be treated as a legal deadline issue, not an administrative preference.

When Is an Online Filing Considered Received?

An online draft is not a filing.

Under USCIS policy, an electronic benefit request is received only after the required form is completed, validly signed, the required filing fee is submitted, and the filer completes the electronic submission. USCIS records the receipt date as the date of the actual online submission.

Saving a draft, uploading an exhibit, sending a passcode to a client, or beginning a Pay.gov transaction is not enough. Filers should preserve:

• The final submitted form or case snapshot
• Every uploaded exhibit in its submitted version
• The payment confirmation
• The electronic receipt notice or receipt number
• The date and time of submission
• Screenshots of any material error or outage
• The client’s approval and signature confirmation

Do not wait until the final minutes before a legal deadline. The new rule anticipates USCIS contingency planning for service interruptions, but it does not create a broad automatic tolling rule for filers who encounter a late technical problem.

 

 

How Does Mandatory E-Filing Affect Applicants and Families?

For many applicants, electronic filing will be faster and less expensive. It eliminates printing, copying, assembly, shipping, and delivery uncertainty. It may calculate the correct fee, flag missing required fields, provide immediate confirmation, and place notices in an online account.

But the system shifts responsibility to the filer in important ways.

Applicants may need to:

• Create and maintain a secure USCIS online account
• Use two-factor authentication
• Retain access to the email address and phone used for verification
• Review a form on a screen rather than as a complete paper package
• Scan and upload readable evidence in accepted file formats
• Use accurate exhibit names and categories
• Confirm that every page was uploaded in the correct orientation and order
• Complete their own electronic-signature and attorney-authorization steps
• Monitor both the online account and physical mail
• Save a complete independent copy of the final submission

The portal may prevent obvious intake mistakes. It cannot identify every legal problem, contradiction, inadmissibility issue, weak evidentiary showing, or strategic risk.

How Will the Rule Affect Immigration Attorneys and Accredited Representatives?

The transition will be substantial. DHS reported that legal representatives submitted about 32% of benefit requests, yet fewer than 6% of attorneys and accredited representatives voluntarily used online filing when it was available in fiscal year 2025.

Why Do Many Immigration Lawyers Dislike USCIS E-Filing?

Immigration lawyers generally do not oppose technology. They oppose losing control, context, and verifiable proof in a filing system where a technical mistake can destroy a legal right.

USCIS’s own data show the resistance. Although representatives submitted about 32% of benefit requests, fewer than 6% of attorneys and accredited representatives voluntarily used available online filing in fiscal year 2025. That gap is not explained only by habit. Paper filing often gives counsel more control over a complex record.

1. Complex Cases Do Not Fit Neatly Into Guided Questions

USCIS online questionnaires are designed for standardized data collection. Immigration cases frequently require qualification, explanation, legal argument, and evidence that must be understood together.

A “yes” answer may require an attached explanation. A prior arrest may require a disposition and legal analysis. An entry-history answer may depend on parole, advance parole, inspection, or an old removal order. A corporate relationship may require organizational charts, tax records, contracts, and a legal brief. A guided portal can collect the answer without helping the filer present the necessary context.

2. Related Forms and Family Cases Can Be Fragmented

Lawyers often prepare one coordinated package containing a petition, adjustment applications, work-permit applications, travel applications, medical records, affidavits of support, and evidence shared by several family members.

Online systems may require separate submissions, separate payments, separate accounts, and repeated uploads. That fragmentation can make it harder to show how the filings relate, preserve a common cover letter and exhibit structure, or ensure USCIS adjudicates the cases together.

3. Upload Limits Can Distort the Evidentiary Record

File-size limits, accepted file types, page limits, document categories, compression, and upload labels create risk. A large exhibit may have to be divided into pieces. Compression can make records unreadable. A document uploaded under the wrong category may be overlooked. A portal may show that a file was uploaded without proving that every page was legible, correctly associated, and available to the officer.

For lawyers, the question is not simply whether a file left the office. It is whether USCIS received the complete, organized, reviewable record counsel intended to submit.

4. The Portal May Not Produce a Reliable “Four Corners” Copy

With paper, counsel can preserve an exact duplicate of the signed form, legal brief, exhibit index, and evidence package delivered to USCIS. Guided online questions may not display like the official paper form, and the final account snapshot may not reproduce every screen, instruction, field, upload association, attestation, or submission event in one integrated record.

That matters when responding to an RFE, preparing for an interview, appealing a denial, defending against a misrepresentation allegation, or proving what the applicant disclosed.

5. Client Verification, Account Control, and Electronic Signatures Create Ethical and Practical Problems

This is one of the most important reasons lawyers resist mandatory e-filing.

In many representative-filed workflows, the lawyer and client do not use the same USCIS account. The lawyer prepares the case through a representative or organizational account. USCIS then generates a one-time representative passcode or electronic invitation. The client must use a separate personal or company account to review the draft, authorize Form G-28, and complete the required client-side signature or attestation. After the client returns the approved filing, the representative can complete the remaining payment and submission steps.

The lawyer should not simply log into the client’s personal account. The client should control the account’s:

• Email address
• Password
• Two-factor authentication method
• Recovery information
• Electronic review and signature
• Attestation that the answers are true and correct

USCIS tells users to maintain individual accounts, and an electronic signature carries the signer’s certification under penalty of perjury. If an attorney, paralegal, preparer, interpreter, relative, or friend controls the client’s credentials or types the client’s electronic signature, questions may arise about who actually reviewed, signed, and attested to the filing. Credential sharing also creates privacy, cybersecurity, professional-responsibility, and proof problems.

USCIS’s online-filing instructions for attorneys and accredited representatives state that a representative-generated passcode permits the client to review the prepared drafts. The USCIS account-creation instructions separately explain how a client enters a representative passcode to access a form prepared by counsel.

The precise signature workflow can differ by form and filing method. A guided online form may require the client to review and digitally sign through the client account. A PDF-upload workflow may rely on a properly signed uploaded form and different representative steps. Counsel must follow the live instructions for the exact form rather than assume that one online-signature process applies everywhere.

The problem is especially serious when the client:

• Has no email address under the client’s reliable control
• Cannot create or recover an online account
• Cannot reliably use two-factor authentication
• Has limited English proficiency or literacy
• Has a visual, cognitive, physical, or developmental disability
• Is elderly or unfamiliar with digital systems
• Is detained, hospitalized, institutionalized, displaced, or unhoused
• Relies on a shared phone, shared email account, public computer, or unsafe household member
• Cannot distinguish between reviewing a draft and signing a legal attestation
• Needs an interpreter or trusted helper for every screen

These are not merely customer-service inconveniences. The client must meaningfully review and adopt the filing, while the lawyer must avoid impersonating the client or creating an unreliable signature record. A client may lose a passcode, use a mismatched email address, enter the wrong account, fail to complete the G-28, decline the draft unintentionally, lose phone access, or miss the signature deadline.

Counsel remains professionally responsible for a timely and accurate filing even though essential steps may occur inside an account counsel should not control.

This produces an account-control paradox: USCIS may treat legal representation as evidence that the person should be able to e-file, but the attorney cannot ethically or securely substitute for the client’s personal identity, account control, review, and signature. For a digitally unsophisticated client, having a lawyer does not eliminate the technological barrier; it can simply move the barrier to the moment when the client must personally authenticate and adopt the filing.

6. Portals Create New Deadline Risks

A delivery company can be tracked and a paper package can be sent before the final day. An online submission may depend simultaneously on:

• USCIS system availability
• Account access and two-factor authentication
• Client approval
• Successful file upload
• Correct fee calculation
• Bank or card authorization
• Generation of a final confirmation

A portal outage, frozen screen, payment failure, or account lockout near midnight can become a status, asylum, age-out, appeal, or employment-authorization problem. The new rule does not create a universal automatic extension for technical failure.

7. Online Validation Can Create False Confidence

The portal may prevent a blank required field while failing to identify a missing legal element, inadmissibility issue, defective affidavit of support, status violation, inconsistent immigration history, weak discretionary record, or missing corroborating evidence.

“Submission successful” means the transmission was accepted. It does not mean the case is approvable—or even legally complete.

8. Government Data Use Is Broader Than Filing Convenience

Electronic filing converts answers into structured data that USCIS can search, compare, flag, and share more efficiently. That can improve fraud detection and consistency. It can also make a stale record, identity mismatch, OCR error, or innocent discrepancy propagate faster across related cases and government systems.

Attorneys therefore must conduct a deeper pre-filing audit of prior petitions, visa applications, I-94 records, SEVIS history, employment records, addresses, marriages, arrests, and encounters with immigration agencies.

9. Law Offices Must Rebuild Their Workflows

Mandatory e-filing requires new account permissions, cybersecurity practices, staff training, client instructions, payment controls, document-conversion procedures, naming conventions, backup systems, and final-record retention. Existing immigration case-management software may not transfer data or evidence cleanly into every USCIS workflow, producing duplicate work and new opportunities for human error.

10. USCIS Can Change the Interface Without Changing the Regulation

Paper forms have edition dates and published instructions. Online questions, validation rules, menus, and account workflows can change more quietly. Counsel must monitor not only the regulation and form instructions, but also the live portal experience.

The Balanced View: E-Filing Has Real Advantages

Lawyers also recognize the benefits:

• Faster receipt confirmation
• No courier or Lockbox-delivery risk
• Automated fee calculation in some workflows
• Warnings for certain blank fields
• Easier access to notices
• Lower filing fees where the online discount applies
• Reduced printing, scanning, and storage
• Faster submission of digital evidence

The objection is not to electronic filing itself. It is to making an imperfect system mandatory without robust deadline protection, simple paper exceptions, reliable integrated filing for related cases, complete submission records, adequate upload capacity, and a meaningful process for correcting government or system errors.

The Representative Workflow Will Become Part of Legal Competence

Depending on the form and account type, counsel may need to:

1. Maintain an individual representative or organizational USCIS account.
2. Select the client and correct benefit request.
3. Draft the form inside the portal or prepare the correct PDF edition.
4. Upload the required initial evidence.
5. Complete and sign Form G-28.
6. Generate a one-time representative passcode.
7. Have the client use a separate online account to review, approve, and electronically sign the G-28 and benefit request.
8. Correct anything the client returns.
9. Pay the correct fee and submit the filing.
10. Download and preserve the final filing record and receipt.

USCIS’s current online-filing guidance for attorneys and accredited representatives should be reviewed for the exact form and workflow.

Law Firms Need New Quality-Control Procedures

Strong procedures should include:

• A daily review of USCIS mandatory-filing notices and form changes
• A form-by-form matrix showing whether paper, guided online filing, or PDFi is permitted
• Independent verification of the form edition and eligibility category
• A standardized electronic exhibit index and file-naming convention
• Page-by-page review for legibility, orientation, completeness, and translation certification
• Written client instructions for account creation, passcodes, review, and signature
• A rule against sharing passwords or two-factor authentication codes
• A second-person review before payment and final submission
• A same-day download of the filed form, exhibits, payment record, and receipt
• A documented backup plan for USCIS outages or account-access problems
• Earlier internal deadlines for status-sensitive, age-out, appeal, asylum, and renewal filings

Representation Will Usually Make an I-936 Waiver Harder

DHS expressly states that represented parties will generally not be expected to qualify for an e-filing waiver because counsel should have internet access and the ability to use electronic filing. A represented applicant can still request a waiver, but the evidence must explain why electronic filing would cause undue hardship despite the availability of legal counsel.

This creates a difficult strategic question. Retaining counsel to help with a complicated case may simultaneously weaken the argument that the applicant cannot use the online filing system. Yet counsel’s representative account does not necessarily eliminate the client’s obligation to create or control a separate account, authenticate identity, review the filing, and complete a client-side signature or attestation.

The lawyer must therefore distinguish legal preparation from personal electronic participation. Counsel may be able to draft the case and upload the evidence while the client remains genuinely unable to control email, two-factor authentication, account recovery, online review, or electronic signature. That distinction should be documented carefully in any Form I-936 request.

How Will the Rule Affect Employers and Business Petitioners?

Businesses should expect waiver requests to receive close scrutiny. DHS reasons that employers already use online tax, wage, labor-condition, labor-certification, and H-1B registration systems. The rule therefore identifies business entities as a group generally unlikely to qualify for a hardship waiver.

Employers and their counsel should prepare for:

• Organizational USCIS accounts and defined user roles
• Coordination among HR, outside counsel, signatories, and beneficiaries
• Electronic signatures by authorized company officials
• Secure payment authorization and internal accounting controls
• Preservation of the exact petition and evidence the company approved
• Controls against duplicate submissions
• Earlier planning for H-1B transfers, extensions, amendments, premium-processing requests, and other time-sensitive cases
• Reconciliation of electronic petition data with LCAs, PERM filings, tax records, corporate records, and prior USCIS submissions

Structured electronic data will make discrepancies easier for USCIS to compare across cases. Job titles, duties, wages, work locations, ownership, revenue, staffing, and beneficiary histories should be reviewed consistently before submission.

What Is Form I-936 and Who Can Obtain an E-Filing Waiver?

Form I-936 is the new Request for Waiver of E-Filing Requirement. It is not a waiver of a substantive immigration ground and does not waive the fee or eligibility requirements for the underlying benefit.

USCIS may approve an I-936 in its discretion if mandatory electronic filing would cause undue hardship.

Factors USCIS Says It May Consider

The rule identifies:

• Geographic location
• Socioeconomic conditions
• Availability of internet and necessary technology
• Availability of public technology resources
• The filer’s ability to obtain help through a library, community center, friend, or family member
• Prior successful electronic filings
• Legal representation
• Whether the requestor is a business entity
• Any other relevant evidence showing why the person or entity cannot reasonably comply

Reasons That Usually Will Not Be Enough by Themselves

• Preferring paper
• Being unfamiliar with the USCIS system
• Not yet having a USCIS online account
• Not having internet service at home without explaining why public or third-party access is unavailable
• Maintaining a paper-based law-office workflow
• Finding the online process inconvenient
• Being a represented party without explaining why counsel cannot complete the electronic process
• Being a business without evidence of exceptional circumstances

The regulation does not provide an exhaustive definition of undue hardship. Each request will be decided individually, which creates both flexibility and uncertainty.

How Does the I-936 Waiver Process Work?

The required sequence is unusually important:

1. Confirm that USCIS has actually mandated e-filing for the underlying form and category.
2. Prepare a separate Form I-936 for the specific form the requestor wants to file on paper.
3. Attach supporting documentation proving undue hardship.
4. Submit the $25 fee or a qualifying fee-waiver request, if permitted.
5. Wait for USCIS to decide the I-936.
6. If approved, use the paper form and filing address supplied by USCIS.
7. Make sure USCIS receives the paper benefit request within the approval period.

USCIS considered allowing a filer to submit I-936 together with the paper benefit request but rejected that approach. The waiver must generally be approved first.

One Waiver Per Form and Per Requestor

One I-936 can identify only one underlying form. A person seeking to submit several forms on paper generally needs a separate waiver request for each form. Each family member who needs a separate benefit request also needs a separate waiver approval.

For example, a family filing several adjustment applications and related work and travel applications may need multiple I-936 filings. USCIS may coordinate waiver decisions for forms that can genuinely be filed together, but approval of one waiver does not guarantee approval of every related waiver.

The Approval Period Is Short

An approval is generally valid for 30 days from issuance for a new filing. Based on the three additional days for service by mail described in the rule, USCIS must receive the paper benefit request within 33 calendar days after the waiver notice is issued.

This is a receipt deadline, not merely a mailing deadline. The approval notice should be read carefully because USCIS may specify a different period or instruction.

A Waiver Does Not Reserve a Filing Date

Filing I-936 does not reserve:

• A priority date
• A place in a visa queue
• A statutory or regulatory deadline
• A nonimmigrant status expiration date
• An EAD renewal date
• A one-year asylum deadline
• An appeal or motion deadline

The underlying benefit request is considered received only when USCIS actually receives the proper filing at the designated location. Anyone who may need a waiver should begin far earlier than a normal online filer.

Approval Does Not Guarantee Acceptance of the Paper Filing

An approved I-936 only authorizes use of paper. USCIS may still reject the later benefit request for an outdated form edition, wrong fee, missing signature, omitted answer, incorrect filing location, or another intake defect.

If USCIS rejects the paper filing, the resubmission must still arrive within the original waiver-validity window. Otherwise, the filer generally must obtain a new waiver.

What Evidence Could Support an I-936 Waiver?

The evidence should connect the requestor’s specific condition to an actual inability to use any reasonable USCIS-approved electronic method. Depending on the facts, relevant documentation may include:

• Proof of residence in an area without reliable broadband or cellular service
• Provider coverage maps, outage records, or service-unavailability letters
• Proof of financial hardship and inability to obtain necessary equipment or service
• Medical evidence of a disability that prevents use of the online system
• Evidence that available assistive technology does not permit completion of the required process
• Evidence of incarceration, institutionalization, displacement, or emergency circumstances
• Documentation that nearby libraries or community resources are inaccessible, unavailable, or unable to provide the required service
• Evidence of advanced age combined with cognitive, visual, physical, linguistic, or technological barriers
• Affidavits explaining unsuccessful efforts to obtain help from family, friends, counsel, a library, or community organizations
• Evidence that the available USCIS method is technically incompatible with the specific required filing despite documented good-faith efforts

The evidence must be truthful and individualized. Applicants should not exaggerate a technological limitation or create an inconsistency with prior online filings, emails, social-media use, employment, banking, or other digital activity.

Why Is USCIS Moving to Mandatory Electronic Filing?

DHS identifies several overlapping reasons.

1. Ending Dependence on Physical Lockboxes

Executive Order 14247 directs agencies to reduce reliance on Treasury’s physical Lockbox services and modernize federal payments. USCIS cannot fully eliminate physical intake while millions of applications and petitions continue arriving by mail.

USCIS reported almost $396 million in fiscal year 2025 Lockbox operating costs. DHS estimates that mandatory e-filing could eventually avoid about $220 million in annual paper-intake labor costs and about $9.5 million in annual government postage costs.

2. Reducing Filing Rejections

USCIS rejected more than one million paper benefit requests in fiscal year 2025. Approximately 25% were rejected solely because of fee problems. Guided online filing can calculate fees, require signatures, and flag missing fields before submission.

PDF upload is less protective because PDFi filings still undergo acceptance review and can be rejected.

3. Improving Speed, Access, and Work Distribution

Electronic records can be routed without shipping a physical file. Multiple authorized offices can access a record at the same time, allowing USCIS to redistribute work and respond to local backlogs.

4. Reducing Lost or Misplaced Files

USCIS reported 86,384 missing or lost files in fiscal year 2025. Digital records reduce physical movement, retrieval delays, and the risk that an officer adjudicates a case without a complete paper record.

5. Expanding Fraud Detection and Continuous Vetting

This is not only a customer-service initiative. DHS says electronic filing captures more information as structured data and supports:

• Cross-case comparisons
• Pattern and anomaly detection
• Identity management
• Fraud Detection and National Security analysis
• Automated background checks
• Continuous vetting
• Faster interagency information sharing
• Litigation and administrative-record production

Applicants should assume USCIS can compare new answers more efficiently against prior petitions, visa records, border entries, SEVIS data, employer filings, addresses, tax information, and other government records. Before filing, review HLG’s guide to the 2026 USCIS signature rule and its analysis of USCIS electronic-payment rejections.

What Are the Benefits of Mandatory E-Filing?

Potential benefits for filers include:

• No printing, copying, assembly, courier, or postage cost
• Faster submission and confirmation
• An electronic receipt or case number in many guided workflows
• Automated fee calculation
• Warnings about missing required fields or signatures
• Reduced risk of using an outdated form edition
• Online access to notices and case history
• Easier submission of records already in digital form
• More secure account access through two-factor authentication
• Less risk of misdirected physical mail
• A $50 lower filing fee for forms that qualify for USCIS’s online-filing discount

DHS estimates approximately $533 million in annual gross savings to requestors from lower mailing costs, avoided refiling, and reduced time. After an estimated $15 million in annual I-936-related costs, DHS projects about $518 million in net annual requestor savings. These are agency-wide averages and forecasts, not a promise that every applicant will save money or time.

What Are the Costs, Burdens, and Risks?

Electronic filing creates new costs even when it removes paper costs.

Direct and Transition Costs

• Computer, smartphone, scanner, broadband, or cellular-data costs
• Staff training and revised law-office workflows
• Immigration case-management and document-conversion costs
• Time spent reducing, separating, naming, and uploading evidence
• Cybersecurity, password-management, and data-retention costs
• Additional help required from libraries, nonprofits, resettlement agencies, and community groups
• The $25 I-936 fee, evidence-preparation cost, and two rounds of mailing for people who need paper access

Legal and Operational Risks

• Wrong online account type or filing category
• A form available online for some categories but not the filer’s category
• Upload limits or unsupported file formats
• Unreadable, incomplete, sideways, duplicated, or omitted evidence
• Difficulty viewing a complex filing as one coherent package
• Payment failures
• Client delay in reviewing or signing
• Loss of account access or two-factor authentication
• Portal maintenance or system interruption near a deadline
• False confidence because the system accepted the filing
• Inconsistent data being identified more quickly across government systems
• Confusion between a saved draft and an actual submission
• Failure to preserve a complete copy of what USCIS received

DHS acknowledges that these switching costs are difficult to quantify and may be higher for complex cases, paper-dependent organizations, low-income applicants, people with disabilities, elderly filers, people with limited digital literacy, and rural communities.

Is Mandatory E-Filing Another Barrier for Immigrants?

Yes, it can be. Modernization and exclusion are not mutually exclusive. Electronic filing may help many people, but the rule knowingly creates a harder path for anyone who cannot use the USCIS system easily, safely, or independently.

It is difficult to prove that DHS’s sole subjective purpose is to keep eligible immigrants from obtaining benefits. The stated purposes are reducing cost, ending dependence on physical Lockboxes, improving data quality, preventing fraud, and expanding national-security screening. Those are real government objectives, and many applicants will benefit from faster receipts, automatic intake checks, lower mailing costs, and online access to notices.

But the design of the exception matters. DHS did not simply allow a person who cannot e-file to submit a short explanation with the paper application. Instead, the rule requires a separate, advance adjudication before the person may even file the underlying case on paper.

The government deliberately chose to:

• Require a separate Form I-936 before the paper benefit request
• Charge $25 for most waiver requests
• Require evidence of undue hardship, not merely good cause or a reasonable explanation
• Treat lack of familiarity and lack of a personal online account as generally insufficient
• Require a person without home internet to explain why a library, community center, friend, or family member cannot provide access
• State that represented applicants and business entities will generally not qualify
• Require one waiver request for each form and each requestor
• Give an approval a short 30-day validity period
• Refuse to preserve the underlying filing date while the waiver is pending
• Require another waiver if a rejected paper filing cannot be corrected within the original approval window

DHS considered easier alternatives and rejected them. The agency declined to allow the I-936 to be filed together with the paper application, declined an informal waiver process, declined a no-fee waiver system, and declined one waiver that could cover several related forms or family members.

Those choices do more than move an application from an envelope to a computer. They place the greatest burden on people who are already most likely to need help:

• Elderly immigrants
• Low-income applicants
• People with disabilities
• People with limited English or digital literacy
• Rural applicants with unreliable broadband
• Detained, institutionalized, displaced, or unhoused people
• Survivors who lack safe control of a phone, email address, or online account
• Applicants relying on overstretched nonprofits, libraries, and pro bono programs

The “digital divide” is therefore not merely an inconvenience. In immigration law, an extra processing step can mean a missed asylum deadline, expired status, interrupted employment authorization, lost priority date, untimely appeal, or child aging out.

There is also a second, less visible barrier: mandatory e-filing increases the government’s screening power. DHS expressly connects the rule to structured data, cross-case analytics, fraud detection, automated background checks, continuous vetting, and faster information sharing. That may improve accuracy and security, but it also allows the government to identify discrepancies and enforcement-relevant information more quickly across a person’s immigration history.

The fair conclusion is not that electronic filing is inherently anti-immigrant. It is that USCIS has selected a mandatory system whose efficiencies primarily benefit the agency, while many of the transition risks fall on applicants. A genuinely access-centered system would include a simple no-cost paper exception, automatic protection of filing dates while waivers are pending, accommodations for emergencies and system failures, and one waiver for a related family filing.

HLG’s view: A filing system should make adjudication more efficient without turning technological access into a new condition of practical eligibility. No person should lose lawful status, work authorization, family unity, asylum protection, or the right to seek review because the government made the doorway digital and then charged for permission to use the old one.

 

Mandatory E-Filing Is Part of a Larger USCIS Pattern

Mandatory e-filing should not be analyzed as an isolated technology rule. It fits into a series of recent USCIS policies that make filing, acceptance, correction, screening, and approval more exacting.

Each policy has a stated administrative, security, anti-fraud, or evidentiary rationale. But their combined effect matters more than any one announcement: there are fewer forgiving ways to submit a case, more technical points at which USCIS can reject or question it, more government tools for identifying inconsistencies, fewer opportunities to cure a deficient record, and greater emphasis on discretionary denial even after statutory eligibility is established.

The Filing-to-Adjudication Restriction System

Stage	USCIS policy or practice	New or increased risk for the filer
Access	Mandatory e-filing and advance Form I-936 approval for most paper exceptions	A person may be unable to use the required channel, lose time waiting for a waiver, or miss a deadline because the waiver does not preserve a filing date.
Signature	Enforcement of an original handwritten source signature for paper or reproduced-signature filings, with electronic signatures permitted through authorized USCIS processes	A filing may be rejected or denied because the signature method—not the person’s substantive eligibility—was considered invalid.
Payment	Mandatory electronic payment for most paper filings	A card, bank, authorization-form, data-entry, or payment-processing problem may cause rejection of the entire filing before an officer reaches the merits.
Intake	Strict form editions, fees, filing locations, barcodes, account types, upload rules, and filing channels	A technically defective package may receive no filing date, even when the applicant appears legally eligible.
Evidence	Restored officer discretion to deny without first issuing an RFE or NOID in situations where USCIS concludes the record does not establish eligibility	An applicant may lose the case without receiving a second chance to supply a missing document or resolve an ambiguity.
Screening	Structured data, systematic flags, pattern and anomaly detection, automated background checks, continuous vetting, and cross-system comparison	An incorrect match, stale record, data conflict, document-processing problem, or unexplained inconsistency can spread through the review process faster and at greater scale.
Merits and discretion	The 2026 Form I-485 memorandum’s emphasis on adjustment of status as extraordinary discretionary relief and administrative grace	Meeting the statutory elements may no longer be treated as the end of the analysis; applicants must affirmatively build the record for a favorable exercise of discretion.

This is a funnel. At every stage, another rule can prevent the case from reaching approval:

1. Can the person access the required filing system?
2. Will USCIS accept the form, signature, payment, and filing method?
3. Is every required fact and supporting document present on day one?
4. Will automated checks or interagency data identify a discrepancy?
5. Will the officer exercise discretion favorably?

1. Signature Enforcement: The Wet-Ink Source Still Matters

USCIS’s July 10, 2026 Signature Requirements policy alert explains that a valid paper-form signature may be the original handwritten signature or a photocopy, scan, fax, or similar reproduction of that original handwritten signature. In other words, USCIS does not necessarily need to receive the sheet bearing the original wet ink, but the reproduced signature generally must originate from a genuine handwritten signature unless USCIS authorizes an electronic signature through an approved process.

That distinction is easy to miss. A pasted signature image, typed name, software-generated script, or electronically drawn mark is not automatically valid merely because it looks like a signature. An applicant or employer can therefore prepare a legally strong case and still face rejection or denial because the signature workflow was wrong. Read HLG’s full analysis of the USCIS signature rule for 2026.

Mandatory e-filing does not eliminate signature risk; it changes the authorized signature method. Applicants, petitioners, employers, and representatives must follow the exact client-review and electronic-authorization process USCIS provides for that filing channel.

2. Electronic-Payment Rules Create a Separate Intake Gate

Since October 28, 2025, USCIS has generally required electronic payment even when the underlying form is mailed on paper. The policy may reduce lost checks and simplify government processing, but it also means that a bank decline, fraud-prevention block, mistyped account number, rejected ACH authorization, expired card, processing mismatch, or USCIS intake error can cause rejection of a filing whose legal contents were otherwise complete.

USCIS itself reported that approximately one-quarter of more than one million paper rejections in fiscal year 2025 were solely fee-related. That illustrates the larger problem: an applicant may lose a deadline, status, work authorization, or place in line because the payment layer failed before USCIS considered eligibility.

For prevention steps, see HLG’s guides to avoiding USCIS payment rejection and USCIS filing-fee payment problems in 2026.

Mandatory e-filing may remove some paper payment-authorization errors because payment occurs inside the online process. It can also concentrate risk in one session: form submission, signature, fee calculation, bank authorization, and receipt generation may all depend on the portal functioning correctly at the deadline.

3. Automated Screening Can Scale Both Detection and Error

DHS expressly says electronic case data will support systematic eligibility flags, advanced analytics, pattern and anomaly detection, fraud analysis, automated background checks, continuous vetting, and faster interagency information sharing. These capabilities are central—not incidental—to the mandatory e-filing rule.

USCIS does not say in the rule that a generative-AI system will make final immigration decisions. Accordingly, “automated or algorithm-assisted screening” is more precise than saying that AI decides every case. Nevertheless, digitization makes it easier to compare a filing against prior petitions, visa applications, border records, addresses, employer data, tax or wage information, SEVIS records, and other government data.

Automation can find a real contradiction that paper review might miss. It can also amplify a bad input. Similar names, identity-resolution errors, stale databases, OCR mistakes, incorrectly associated evidence, inconsistent field definitions, or a rule-based flag without adequate context can produce an incorrect concern. If the resulting RFE, NOID, fraud referral, or denial is based on a mistaken premise, the applicant must identify the error, correct the record, and preserve proof of what was actually submitted.

HLG has discussed the practical consequences of erroneous or formulaic notices in its analysis of the Form I-864 RFE crisis and recurring I-864 RFE errors. A filing that is digital, searchable, and easy to compare is not necessarily a filing that will be interpreted correctly.

4. USCIS May Deny Without First Issuing an RFE or NOID

On August 5, 2026, USCIS issued an Evidentiary Standards policy alert restoring officers’ full discretion to deny certain benefit requests without first issuing a Request for Evidence or Notice of Intent to Deny. The USCIS Policy Manual’s evidence chapter explains that an RFE or NOID is not required by regulation in every case and that USCIS may deny for failure to submit required initial evidence or failure to establish eligibility.

This does not mean that USCIS can disregard a statute, regulation, settlement, or form-specific rule that requires notice in a particular setting. Nor does it mean that officers must deny every incomplete case immediately. It means filers should not plan on an RFE as a routine opportunity to finish the case later.

That policy magnifies the consequences of mandatory e-filing. An omitted upload, truncated exhibit, corrupted file, mislabeled document, portal display problem, or evidence placed in the wrong category may no longer lead to a curable RFE. It may lead directly to denial.

The safer filing principle is: build the initial submission as though there will be no RFE, no NOID, and no informal opportunity to explain. Online acceptance confirms receipt; it does not confirm that the legal record is complete.

5. The I-485 “Extraordinary Relief” Memorandum Raises the Merits Bar

USCIS Policy Memorandum PM-602-0199, dated May 21, 2026, describes adjustment of status as a matter of discretion and administrative grace and as extraordinary relief from the ordinary consular visa process. USCIS’s May 22 announcement directed officers to consider all relevant factors and information case by case when deciding whether an applicant warrants a favorable exercise of discretion.

The memorandum does not repeal INA § 245, create a categorical rule denying every eligible Form I-485, or eliminate categories in which Congress authorized adjustment of status. But its framing is important. It tells adjudicators that satisfying the technical statutory requirements may be necessary without being sufficient. Where adjustment is discretionary, the applicant bears the burden of showing not only eligibility, but why USCIS should exercise discretion favorably after weighing the totality of the circumstances.

For applicants, that may require a more deliberate record addressing immigration history, maintenance or violation of status, unauthorized employment where relevant, family and community ties, hardship, rehabilitation, candor, economic or national-interest contributions, and any other positive or negative factor USCIS may consider. See HLG’s detailed guide: Will USCIS Deny My I-485 Under the New 2026 Memo?.

Why the Combined Effect Is More Restrictive

USCIS can defend each component separately: signatures protect authenticity, electronic payments reduce paper handling, online forms reduce missing fields, data analytics detect fraud, denial discretion discourages skeletal filings, and discretionary analysis is part of the statute.

But people experience the system cumulatively, not one policy at a time. The combined architecture shifts more risk to the applicant:

• The channel is mandatory. Using paper without advance permission may cause rejection.
• The exception is narrow. A filer must prove undue hardship, pay a fee in most cases, and wait before filing the underlying request.
• The transaction has multiple technical gates. Account access, form version, uploads, signature, and payment must all work.
• Screening is broader and faster. Structured data makes cross-record comparison easier.
• The correction window is uncertain. USCIS may deny without an RFE or NOID where notice is not otherwise required.
• Approval may demand more than threshold eligibility. Discretionary applications must be built to persuade, not merely to qualify.

The policy judgment is therefore not simply “paper versus online.” It is whether the government has provided enough safeguards when a technical or human error can trigger immigration consequences that are immediate, severe, and sometimes irreversible.

HLG’s view: USCIS is constructing a more rigid filing-to-adjudication system: fewer routes into the process, stricter acceptance rules at the door, more powerful screening inside, fewer guaranteed chances to correct the record, and greater discretion at the final decision. Efficiency is a legitimate goal. But when the agency’s own systems, data, or notices are wrong, due process requires a meaningful and timely way to correct the error before a family, worker, employer, or protection-seeker bears the loss.

Is Electronic Filing More Secure?

It can be, but security depends on how the account is managed.

USCIS online accounts use two-factor authentication and can protect sensitive notices from mail theft, address errors, or access through a shared mailbox. Electronic records also reduce lost paper files.

At the same time, applicants and law firms must protect:

• Login credentials
• Recovery email and phone access
• One-time authentication codes
• Representative passcodes
• Uploaded identity and financial documents
• Payment information
• Downloaded filing records
• Staff permissions in organizational accounts

Never give an attorney, preparer, friend, or translator the password to a personal USCIS account. Use the representative workflow USCIS provides. Applicants should personally review and sign the filing because an electronic signature carries the same legal consequences as a handwritten signature.

How Does This Rule Relate to Mandatory Electronic Payments?

Electronic payment and electronic filing are different.

Since October 28, 2025, USCIS generally requires electronic payment even for forms mailed on paper. A paper filer ordinarily authorizes a credit-card payment through Form G-1450 or an ACH withdrawal through Form G-1650, subject to USCIS instructions and limited exceptions.

Under true e-filing, the filer pays through the approved online process rather than mailing a paper payment-authorization form. The 2026 rule moves USCIS from “paper filing with electronic payment” toward a fully electronic filing, payment, record, and adjudication environment. See HLG’s complete guide to the USCIS electronic-payment transition.

What Should Applicants, Employers, and Attorneys Do Now?

Use this pre-filing plan:

1. Identify every form and eligibility category. A single form may be mandatory online only for specified classifications.
2. Check the individual USCIS form page. Do this when planning the case and again on the day of submission.
3. Look for a form-specific 60-day notice. Do not assume last month’s paper rules remain valid.
4. Confirm the authorized electronic method. Determine whether the case uses guided online filing, PDFi, an organizational account, or another approved interface.
5. Create and secure the correct account early. Test two-factor authentication and recovery methods before a deadline.
6. Map concurrent filings. Confirm which forms can be filed together electronically and which require separate submissions.
7. Audit legal eligibility and required initial evidence. Portal acceptance does not establish eligibility.
8. Build an upload-quality record. Verify each filename, page count, translation, certification, scan, and category.
9. Coordinate signatures. Give clients or company signatories enough time to review and complete their own electronic approvals.
10. Verify fees immediately before filing. Use the current USCIS fee schedule and form instructions.
11. Submit before the legal deadline. Do not rely on last-minute portal access.
12. Preserve the complete filing. Save the final form, case snapshot, exhibits, payment confirmation, submission timestamp, and receipt.
13. Plan waivers far in advance. Form I-936 does not preserve the underlying filing date.
14. Review the entire immigration history for consistency. Structured data makes discrepancies easier to detect.
15. Get legal advice when the filing affects status, work authorization, travel, a priority date, an age-out, asylum, or an appeal deadline.

HLG Analysis: The Real Change Is Bigger Than “Paper Versus Online”

The obvious change is the filing channel. The deeper change is that USCIS is converting immigration applications into structured, searchable, cross-comparable government data from the moment of submission.

That has two opposite effects.

For a careful filer, it can eliminate avoidable errors, provide a faster receipt, reduce mailing risk, and make the case easier to track.

For an unprepared filer, it can detect inconsistencies faster and create a false sense of security. A portal may accept the form even when the case contains a serious inadmissibility problem, contradictory history, missing legal argument, weak initial evidence, or an incorrect strategy.

The safest rule is:

Treat the USCIS portal as a filing system—not as an immigration lawyer, eligibility screener, or guarantee of approval.

Frequently Asked Questions About USCIS Mandatory E-Filing

Did USCIS Eliminate All Paper Immigration Forms on August 11, 2026?

No. The rule became effective on that date, but it creates a framework for future form-specific mandates. USCIS must provide at least 60 days of advance notice before ending paper filing for a covered form or category.

Are Any USCIS Forms Required to Be Filed Online as of August 30, 2026?

Yes. Form G-325R must be submitted through the registrant’s individual USCIS online account. USCIS also states that Form I-129H2A itself can only be filed online through PDF upload. H-1B cap registration is electronic-only during the registration period, and Form I-134A is online-only when an applicable parole program is accepting or inviting the filing. These existing electronic-only processes are distinct from a future mandate imposed under the August 11, 2026 rule.

Has USCIS Announced the First Mandatory Date Under the August 2026 E-Filing Rule?

No. As of August 30, 2026, USCIS has not posted a form-specific 60-day notice identifying the first benefit form or category that will become mandatory under the new framework.

Must Form I-485 Be Filed Online Beginning September 18, 2026?

No. September 18, 2026 is a new-edition date for Form I-485, not a universal mandatory e-filing date. A filer must use the correct edition but may still use an authorized paper method if the current instructions permit paper filing for that eligibility category.

Why Do Immigration Lawyers Often Prefer Paper Filing?

Paper can give counsel greater control over complex legal explanations, concurrent forms, family-grouped cases, exhibit organization, signatures, and preservation of an exact filing copy. Lawyers also worry about upload limits, portal outages, separate client-controlled account and signature steps, fragmented submissions, payment failures, and whether the account record proves exactly what USCIS received. E-filing has real advantages, but lawyers want stronger safeguards before it becomes mandatory.

Does the Immigration Lawyer Log Into the Client’s USCIS Account?

Generally, no. The representative and client ordinarily use separate USCIS accounts. The lawyer prepares the filing through a representative or organizational account and provides a passcode or invitation. The client uses the client-controlled account to perform the required review, authorization, and signature steps. The lawyer should not control or use the client’s password, email, two-factor authentication, or electronic signature. The precise workflow varies by form and by guided-versus-PDF filing.

What If the Client Cannot Create or Control a USCIS Online Account?

Begin early and document the exact barrier. The client may use accessible technology, an interpreter, or trusted assistance while personally controlling the account and knowingly completing the required attestation. If the client cannot meaningfully control email, authentication, recovery, review, or signature even with reasonable help, counsel should evaluate a Form I-936 undue-hardship waiver when one is legally available. Representation may make approval harder, so the evidence must explain why counsel’s ability to prepare the case does not solve the client’s inability to complete personal account and signature requirements.

How Will I Know Whether My USCIS Form Must Be Filed Online?

Check the individual USCIS form page, current form instructions, the USCIS online-filing page, and USCIS notices on the date you file. A general article or old checklist is not enough.

Can USCIS Require E-Filing for Only One Category on a Form?

Yes. The regulation permits USCIS to mandate e-filing in specified circumstances, even if other categories using the same form remain paper-eligible.

What Counts as Electronic Filing?

It includes guided online filing, an approved portal or electronic interface, or uploading a completed PDF through an approved USCIS online account.

Will USCIS Reject a Paper Form After Online Filing Becomes Mandatory?

USCIS may reject a paper filing submitted after the mandatory date unless the requestor has an approved waiver and follows the waiver notice.

Does a Rejected Paper Filing Preserve My Filing Date?

Generally, no. A rejection can cause the loss of a deadline, priority date, status-protection strategy, or other time-sensitive benefit.

What Is Form I-936?

Form I-936 is the Request for Waiver of E-Filing Requirement. It asks USCIS for advance permission to submit one specified benefit request on paper because mandatory e-filing would cause undue hardship.

How Much Does Form I-936 Cost?

The regulatory fee is $25. A fee waiver is available only in limited categories specified by regulation.

Can I File Form I-936 With My Paper Application?

Generally, no. The rule requires the waiver request first. If USCIS approves it, the agency sends instructions for the later paper filing.

Does Form I-936 Stop a Filing Deadline?

No. An I-936 request does not preserve a priority date, reserve a place in line, or toll the deadline for the underlying benefit request.

How Long Is an Approved E-Filing Waiver Valid?

Generally, the approval is valid for 30 days from issuance for a new filing, and USCIS must receive the paper filing within 33 calendar days after issuance. Always follow the exact approval notice.

Can One I-936 Cover an Entire Family or Several Forms?

No. Each requestor generally needs a separate approval, and each I-936 identifies only one underlying form. A multi-form family filing may require several waiver requests.

Is Lack of Home Internet Enough for a Waiver?

Usually not by itself. The filer must explain why access through a library, community center, family member, friend, representative, or another reasonable resource is not available.

Can a Person With an Immigration Lawyer Receive a Waiver?

It is possible, but DHS expects represented parties generally not to qualify because counsel should be able to access and use electronic filing. Exceptional circumstances must be documented.

Can a Business Receive a Waiver?

It can request one, but DHS identifies businesses as generally unlikely to qualify. The evidence must show case-specific undue hardship.

Does Online Acceptance Mean USCIS Will Approve the Case?

No. Online validation primarily addresses intake requirements. USCIS can still issue an RFE or NOID, schedule an interview, investigate, or deny the case.

Can USCIS Deny a Case Without First Issuing an RFE or NOID?

Yes, in some circumstances. USCIS’s August 5, 2026 evidentiary policy restores officer discretion to deny without first issuing an RFE or NOID when the governing law does not require advance notice and the initial record fails to establish eligibility. A specific statute, regulation, settlement, or procedural rule may still require notice in a particular type of case. Filers should prepare the initial submission as though there will be no later opportunity to cure a deficiency.

Is USCIS Using AI to Review Immigration Filings?

USCIS officially describes systematic flags, advanced analytics, pattern and anomaly detection, automated background checks, continuous vetting, and cross-system data comparison. The mandatory e-filing rule does not state that generative AI will make final adjudications. “Automated or algorithm-assisted screening” is therefore the more accurate description unless USCIS identifies a particular tool as artificial intelligence.

What Does the 2026 I-485 “Extraordinary Relief” Memo Mean?

Policy Memorandum PM-602-0199 emphasizes that adjustment of status is discretionary and describes it as extraordinary relief from ordinary consular processing. It does not categorically eliminate adjustment of status or change every statutory eligibility element. It does signal that applicants should document why they merit a favorable exercise of discretion, not merely submit evidence of threshold eligibility.

Does USCIS Require the Original Wet-Signature Page?

Not necessarily. USCIS may accept a photocopy, scan, fax, or similar reproduction of an original handwritten signature. The important distinction is that the reproduced signature generally must originate from a genuine handwritten signature unless USCIS authorizes an electronic signature through an approved process.

Is Guided Online Filing Safer Than PDF Upload?

Guided filing may prevent more intake errors because it checks required fields, signatures, and payment before submission. PDFi can still be rejected after intake review. Neither method guarantees legal sufficiency.

What If the USCIS Website Is Down on My Deadline?

Preserve screenshots and error messages, but do not assume the deadline will automatically be extended. Build an earlier internal deadline and seek immediate legal guidance for a time-sensitive filing.

Can an Attorney Electronically Sign for the Client?

The attorney signs the representative submission as permitted, but the applicant, petitioner, or authorized company signatory must complete the required client review and signature steps. The client should not share personal USCIS account credentials.

Will Electronic Filing Reduce USCIS Fees?

Some forms currently receive a $50 online-filing discount. The amount and eligibility depend on the current fee regulation and form instructions. Mandatory e-filing does not guarantee that every form will cost less.

Can the Rule Change After Public Comments?

Yes. DHS issued an interim final rule and invited comments through October 13, 2026. DHS may revise the framework in a later final rule, and litigation may also affect implementation. Until then, the effective regulation and current USCIS instructions control.

Speak With an Experienced Immigration Lawyer Before a Time-Sensitive Filing

Do not ask only, “Can this form be filed online?” The legally important questions are whether your exact category must be filed online, whether related forms can be submitted together, whether every item of required initial evidence is included, whether the filing is consistent with your complete immigration history, and whether a rejection or denial could cause you to lose status, work authorization, a priority date, age-out protection, or a statutory deadline.

Herman Legal Group helps individuals, families, students, professionals, humanitarian applicants, and employers:

• Determine whether USCIS requires online or paper filing for the exact form and category
• Audit prior immigration filings and government records for damaging inconsistencies
• Build a complete initial evidentiary record without relying on a later RFE
• Organize electronic exhibits so critical evidence is readable and easy to find
• Coordinate family, adjustment, employment-authorization, travel, and employer filings
• Evaluate whether Form I-936 hardship-waiver evidence is strong enough
• Respond when USCIS rejects a filing, processes a payment incorrectly, issues an erroneous RFE or NOID, or denies without giving a meaningful opportunity to correct the record

Richard T. Herman has practiced immigration law for more than 30 years. HLG represents clients throughout the United States and around the world in family immigration, employment immigration, humanitarian cases, citizenship, and removal defense. Employers can also review HLG’s employment-based immigration services.

Before submitting a deadline-sensitive USCIS filing, call Herman Legal Group at +1-216-696-6170 or book a confidential consultation with Richard T. Herman. Bring the proposed forms, filing deadline, prior immigration records, payment information, and any USCIS account or technical-error notices so counsel can identify risks before the filing becomes irreversible.

This article provides general information and is not legal advice. USCIS filing methods, form editions, fees, and eligibility categories can change. Always verify the controlling rule and form instructions on the date of filing.

Official Government Resources

• DHS Mandatory Electronic Filing Interim Final Rule, 91 Fed. Reg. 51924
• USCIS Alert: USCIS to Require Electronic Filing of Forms
• USCIS Forms Available to File Online
• USCIS Form G-325R
• USCIS Alien Registration Requirement
• USCIS H-1B Electronic Registration Process
• USCIS Family Reunification Parole FAQs for Form I-134A
• USCIS Online Filing Options
• USCIS Online Filing for Attorneys and Accredited Representatives
• USCIS Tips for Filing Forms Online
• USCIS Policy Manual, Volume 1, Part B, Chapter 6: Submitting Requests
• USCIS Filing Fees
• USCIS Policy Alert: Signature Requirements, July 10, 2026
• USCIS Policy Alert: Evidentiary Standards and RFE/NOID Discretion, August 5, 2026
• USCIS Policy Manual, Volume 1, Part E, Chapter 6: Evidence
• USCIS Announcement on Adjustment of Status and Extraordinary Circumstances
• USCIS Announcement: Mandatory Electronic Payments
• Regulations.gov Docket USCIS-2026-0232

 

USCIS Appeals Dorcas v. USCIS Decision to First Circuit After Ending Immigration Hold Policies

USCIS Appeals Dorcas v. USCIS Decision

Updated June 13, 2026

In a major development affecting thousands of immigration applicants, U.S. Citizenship and Immigration Services (USCIS) has formally appealed the Rhode Island federal court decision in Dorcas International Institute of Rhode Island v. USCIS. This case is significant as it involves the USCIS Appeals Dorcas Decision.

On June 12, 2026, USCIS filed a Notice of Appeal seeking review of the district court’s decision by the U.S. Court of Appeals for the First Circuit.

The appeal follows Chief Judge John J. McConnell Jr.’s June 5, 2026 decision in Dorcas v. USCIS, which vacated several USCIS policies that had paused, delayed, re-reviewed, or otherwise restricted adjudication of immigration benefit requests involving nationals from countries subject to heightened screening and travel restrictions. The implications of this decision include the USCIS Appeals Dorcas Decision that may set a precedent for future cases.

Just days after the ruling, USCIS announced in Court Order on Hold Policies that it was implementing the court’s order, ending the challenged hold policies, and resuming adjudication of affected immigration benefit requests. Later that same day, USCIS filed its appeal.

This case highlights the critical nature of the USCIS Appeals Dorcas Decision and its potential impact on immigration policies.

For background on the underlying litigation, see our earlier analyses:

• USCIS Court Order Vacating Immigration Hold Policies: What Applicants Need to Know
• Rhode Island Court Strikes Down USCIS Benefits Freeze: What It Means for Your Green Card, Work Permit, Citizenship and Asylum Case

Together, these developments create one of the most important immigration law stories of 2026 and could affect thousands of pending immigration cases nationwide.

Quick Answer

Did USCIS Appeal the Dorcas Decision?

Yes.

On June 12, 2026, USCIS filed a Notice of Appeal seeking review by the U.S. Court of Appeals for the First Circuit.

Is the Rhode Island Court Order Still in Effect?

Generally yes.

The filing of an appeal does not automatically suspend or overturn the district court’s decision.

Unless the government obtains a stay, the court’s June 5 order remains in effect while the appeal proceeds.

Did USCIS Resume Processing Cases?

Yes.

In Court Order on Hold Policies, USCIS announced that it was implementing the court’s order and discontinuing the challenged hold policies.

Key Takeaways

• USCIS appealed the Dorcas decision on June 12, 2026.
• USCIS also announced on June 12 that it was ending the challenged hold policies.
• The district court’s order generally remains in effect unless a stay is granted.
• The appeal will be heard by the U.S. Court of Appeals for the First Circuit.
• The litigation may affect green card applications, asylum cases, citizenship applications, employment authorization requests, refugee benefits, and other immigration filings.
• The case could eventually reach the U.S. Supreme Court.

 

What Is Dorcas v. USCIS?

The lawsuit challenged several USCIS policies that allegedly suspended, delayed, or subjected immigration benefit requests to additional review based on nationality and security-screening concerns.

The challenged policies included:

• Benefits Hold Policy;
• Global Asylum Hold Policy;
• Comprehensive Re-Review Policy;
• Country-Specific Factors Policy.

Plaintiffs argued that USCIS exceeded its authority by effectively freezing adjudications through internal policies that lacked authorization under federal law.

On June 5, 2026, Chief Judge McConnell largely agreed and vacated the challenged policies in Dorcas v. USCIS.

As discussed in Rhode Island Court Strikes Down USCIS Benefits Freeze: What It Means for Your Green Card, Work Permit, Citizenship and Asylum Case, the court concluded that USCIS had exceeded its authority and violated federal administrative law.

What Happened on June 12, 2026?

June 12 produced two significant developments.

USCIS Announced It Was Ending the Hold Policies

USCIS published Court Order on Hold Policies confirming that it was implementing the Rhode Island court’s order.

The announcement states that USCIS would discontinue the challenged hold policies and resume processing affected immigration benefit requests.

We analyzed the practical implications of that announcement in USCIS Court Order Vacating Immigration Hold Policies: What Applicants Need to Know.

USCIS Filed an Appeal

Later that same day, USCIS filed a Notice of Appeal asking the First Circuit to review and potentially reverse the district court’s decision.

These actions indicate that USCIS intends to comply with the court’s order while simultaneously challenging the ruling on appeal.

Does the Appeal Automatically Reinstate the Immigration Hold Policies?

No.

This is one of the most important points for applicants to understand.

The filing of an appeal does not automatically restore the vacated policies.

Unless the government obtains a stay from either the district court or the First Circuit, the June 5 order generally remains effective.

For now, USCIS’s official position remains reflected in Court Order on Hold Policies, which states that the agency is implementing the district court’s ruling.

Who May Be Affected?

The litigation may affect individuals whose immigration cases were delayed, suspended, re-reviewed, or subjected to additional scrutiny under the challenged policies.

Potentially affected categories include:

• Adjustment of Status (Form I-485) applicants;
• Naturalization (Form N-400) applicants;
• Asylum applicants;
• Refugees;
• Employment Authorization Document (EAD) applicants;
• Family-based immigration applicants;
• Employment-based immigration applicants;
• Humanitarian immigration applicants.

The underlying litigation particularly focused on policies affecting nationals from countries subject to enhanced screening measures and travel restrictions.

 

What Happens Next?

The appeal will likely proceed through several stages:

1. Appellate Briefing

Both sides will submit legal briefs addressing the district court’s decision.

2. Amicus Briefs

Advocacy organizations, employers, universities, labor groups, and other stakeholders may participate.

3. Oral Argument

The First Circuit may schedule oral argument.

4. Appellate Decision

The court may affirm, reverse, modify, or remand the case.

5. Possible Supreme Court Review

Given the significance of the issues involved, Supreme Court review remains possible.

Richard Herman’s Analysis

The appeal was expected.

The Rhode Island decision struck down policies that were central to the Administration’s immigration screening and adjudication framework.

Given the nationwide implications discussed in Rhode Island Court Strikes Down USCIS Benefits Freeze: What It Means for Your Green Card, Work Permit, Citizenship and Asylum Case, an appeal was highly likely.

The more important short-term question may be whether the government seeks and obtains a stay.

Without a stay, USCIS faces continued pressure to adjudicate cases that had previously been delayed or suspended under the vacated policies.

For immigrants, employers, universities, and families, the district court’s ruling remains a major legal development even as the appeal moves forward.

What Applicants Should Do Now

Monitor Your Case

Review USCIS case status updates regularly.

Save All USCIS Correspondence

Keep copies of notices, RFEs, interview notices, and other communications.

Document Harm Caused by Delays

Preserve evidence of:

• employment consequences;
• travel disruptions;
• family separation;
• financial losses;
• educational impacts.

Stay Informed

Review:

• Court Order on Hold Policies
• USCIS Court Order Vacating Immigration Hold Policies: What Applicants Need to Know
• Rhode Island Court Strikes Down USCIS Benefits Freeze: What It Means for Your Green Card, Work Permit, Citizenship and Asylum Case

as the litigation continues.

Source Documents

• USCIS Notice of Appeal (June 12, 2026)
• USCIS Court Order on Hold Policies (June 12, 2026)
• Dorcas v. USCIS Opinion and Order (June 5, 2026)

Need Help?

If your immigration case may have been delayed, suspended, re-reviewed, or otherwise affected by the policies challenged in Dorcas v. USCIS, the immigration attorneys at Herman Legal Group can evaluate your situation and discuss your options.

Call +1-216-696-6170 or schedule a consultation with immigration attorney Richard T. Herman and the Herman Legal Group team.

 

Families watching USCIS litigation should also follow HLG’s update on the court ruling involving the 75-country immigrant visa pause.

USCIS Ends Most Telephonic Attorney Appearances: What the New Policy Means for Immigrants, Attorneys, and Access to Justice

Updated June 2026

Quick Answer

Beginning May 18, 2026, USCIS generally requires attorneys and accredited representatives to appear in person at adjustment of status interviews, naturalization interviews, affirmative asylum interviews, and certain NACARA interviews.

The new USCIS attorney interview policy is expected to impact many applicants.

Although immigrants continue to have the right to legal representation, the new policy significantly limits remote attorney participation and may increase costs for applicants who rely on counsel located outside their state. Understanding the USCIS attorney interview policy is crucial for navigating these changes.

The policy appears in USCIS guidance on Preparing for Your Affirmative Asylum Interview.

Key Takeaways

• USCIS generally no longer permits telephonic attorney participation in covered interviews.
• Attorneys must typically appear physically at the interview location.
• USCIS states that exceptions may exist in “limited circumstances,” but has not clearly defined those circumstances.
• The policy may increase legal fees and travel costs for immigrants.Overall, the USCIS attorney interview policy aims to streamline interview processes but raises concerns among immigrant communities.
• The change may reduce access to specialized immigration counsel.
• Federal regulations continue to recognize the right to representation before DHS.
• The policy appears difficult to justify from an efficiency and modernization perspective.
• Critics argue that the policy reflects a broader trend toward increasing procedural burdens in immigration adjudications.

 

What Exactly Changed?

USCIS now generally requires attorneys and accredited representatives to attend covered interviews in person.

The policy affects:

Adjustment of Status Interviews

Including:

• marriage-based green cards;
• family-sponsored green cards;
• employment-based green cards;
• diversity visa adjustment cases.

Naturalization Interviews

Including N-400 examinations involving:

• criminal history issues;
• selective service concerns;
• false claims to U.S. citizenship;
• unlawful voting allegations;
• lengthy absences from the United States.

Affirmative Asylum Interviews

The policy applies to interviews conducted by USCIS asylum offices.

NACARA Interviews

The policy also extends to certain NACARA proceedings.

USCIS announced the change without publishing a detailed explanation of what constitutes the “limited circumstances” under which remote participation may still be permitted.

What Has Not Changed?

Many reports incorrectly suggest that USCIS has prohibited attorneys from participating in interviews.

That is not accurate.

Applicants still have the right to legal representation.

Attorneys may still:

• file Form G-28;
• receive notices;
• prepare clients;
• submit evidence;
• attend interviews;
• raise legal concerns;
• advocate on behalf of clients.

The change concerns the method of participation.

In most cases, USCIS now requires physical attendance rather than telephonic participation.

What Are the “Limited Circumstances” Exceptions?

One of the most significant unanswered questions surrounding the new USCIS policy is the meaning of the phrase “limited circumstances.”

USCIS has announced that attorneys and accredited representatives generally may not participate remotely in covered interviews, but the agency has not publicly defined:

• what qualifies as a limited circumstance;
• how requests should be submitted;
• what evidence should accompany a request;
• who makes the decision;
• whether denials may be appealed;
• whether different field offices may apply different standards.

As of this writing, USCIS has provided little public guidance.

That uncertainty leaves applicants and attorneys attempting to predict what situations might justify an exception.

Circumstances That May Support a Remote Participation Request

Although USCIS has not established formal criteria, several situations appear likely to present stronger arguments.

Serious Medical Issues

An attorney suffering from a significant medical condition may have a compelling basis for requesting remote participation.

Examples may include:

• recent surgery;
• hospitalization;
• serious illness;
• physician-imposed travel restrictions;
• immunocompromised conditions.

Supporting documentation from a treating physician may strengthen the request.

Disability Accommodations

Attorneys with disabilities that substantially impair travel may have a strong argument for remote participation.

Potential examples include:

• mobility impairments;
• chronic medical conditions;
• disabilities requiring specialized accommodations.

Documentation supporting the accommodation request may be helpful.

Extraordinary Travel Burdens

The strongest practical arguments may arise where physical attendance would impose unusual burdens.

Examples might include:

• cross-country travel;
• international travel complications;
• severe weather disruptions;
• transportation emergencies;
• natural disasters.

While distance alone may not be sufficient, extraordinary travel obstacles could support an exception request.

Specialized Counsel in High-Stakes Cases

Another potential argument involves highly specialized representation.

Examples may include:

• EB-1A Extraordinary Ability cases;
• National Interest Waiver matters;
• denaturalization concerns;
• false claim to citizenship allegations;
• unlawful voting allegations;
• national security issues;
• complex asylum claims.

Applicants may argue that requiring physical attendance would effectively deprive them of meaningful access to the counsel they selected.

Whether USCIS will accept this argument remains unclear.

Asylum Cases Involving Vulnerable Applicants

Certain affirmative asylum cases may present compelling circumstances.

Examples could include:

• severe trauma;
• mental health conditions;
• interpreter complications;
• vulnerable populations;
• unusually complex evidentiary issues.

Attorneys may argue that remote participation would facilitate a fair and accurate interview without creating administrative burdens.

Emergencies Arising After Scheduling

Unexpected events occurring shortly before an interview may also justify a request.

Examples include:

• family emergencies;
• sudden illness;
• cancelled flights;
• natural disasters;
• transportation failures.

In these situations, remote participation may be preferable to cancelling and rescheduling the interview.

 

How Should Attorneys Request an Exception?

Because USCIS has not published a formal procedure, practitioners should consider creating a clear written record.

Submit the Request Early

Do not wait until the day of the interview.

Whenever possible, submit the request immediately after receiving the interview notice.

Early requests demonstrate good faith and provide USCIS time to evaluate the circumstances.

Make the Request in Writing

A written request creates documentation that may later become important.

The request should:

• identify the applicant;
• identify the attorney;
• provide the interview date and location;
• explain the specific circumstances;
• explain why remote participation is requested;
• attach supporting evidence where appropriate.

Emphasize Efficiency

This point may be particularly persuasive.

The request should explain that remote participation:

• avoids unnecessary delay;
• prevents rescheduling;
• conserves government resources;
• reduces costs;
• facilitates representation.

If remote participation would allow the interview to proceed as scheduled, that fact should be highlighted.

Cite Representation Rights

Although the new policy generally requires physical attendance, attorneys may wish to reference:

• 8 CFR § 292.5;
• 5 U.S.C. § 555(b).

The purpose is not to challenge USCIS authority but to emphasize the longstanding importance of meaningful attorney participation.

Offer Alternative Formats

Do not limit the request to telephone participation.

Consider offering:

• telephone appearance;
• video appearance;
• Microsoft Teams;
• Webex;
• any platform acceptable to USCIS.

Flexibility may increase the likelihood of approval.

What If USCIS Denies the Request?

If USCIS denies remote participation, attorneys should consider preserving the issue.

Potential steps may include:

• retaining copies of all requests;
• documenting communications with USCIS;
• documenting costs associated with compliance;
• documenting any hardship imposed on the applicant.

This documentation may become important if future litigation challenges the policy or if USCIS later publishes additional guidance.

Richard Herman’s Analysis

The phrase “limited circumstances” may ultimately become the most important part of the entire policy.

A rigid interpretation could dramatically increase costs and reduce access to counsel.

A flexible interpretation could preserve many of the benefits of remote participation while still allowing USCIS discretion in individual cases.

Until USCIS publishes clear standards, applicants and attorneys should assume that remote participation will be the exception rather than the rule and should submit any exception requests as early and as thoroughly as possible.

The reality is that the strongest exception requests will likely be those that demonstrate both hardship and efficiency—showing not only why physical attendance is difficult, but also why remote participation would allow USCIS to conduct the interview fairly, accurately, and without unnecessary delay.

 

Immigration Law Has Long Recognized the Importance of Legal Representation

The significance of the policy becomes clearer when viewed against the legal framework governing representation before DHS.

Federal Regulations Protect Representation Rights

The foundational regulation is 8 CFR § 292.5(b).

The regulation provides:

Whenever an examination is provided for in this chapter, the person involved shall have the right to be represented by an attorney or representative.

Importantly, the regulation contemplates active participation by counsel.

Attorneys may:

• introduce evidence;
• make objections;
• examine witnesses;
• cross-examine witnesses;
• submit briefs.

This is not the language of a system that views attorneys as passive observers.

It is the language of a system that recognizes representation as an important procedural safeguard.

Another key regulation is 8 CFR § 292.1, which identifies the attorneys and accredited representatives authorized to appear before DHS.

USCIS Built an Entire System Around Attorney Representation

USCIS has long recognized the importance of legal representation through Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative.

The agency’s representation framework assumes that attorneys play a meaningful role in helping applicants navigate increasingly complex immigration laws.

Whether the case involves:

• adjustment of status;
• naturalization;
• asylum;
• waivers;
• humanitarian relief;

USCIS has historically facilitated attorney participation rather than discouraged it.

An Important Historical Fact Most Commentators Have Missed

One of the most overlooked aspects of this story is that USCIS previously moved in the opposite direction.

In 2022, USCIS implemented a pilot program allowing remote attorney participation in asylum interviews.

The agency’s pilot documentation remains publicly available through the USCIS Remote Attorney Participation Pilot Program.

The pilot explicitly recognized that asylum applicants have the right to have an attorney present at their interviews.

This creates an obvious question:

If remote participation was sufficiently beneficial to justify a USCIS pilot program in 2022, what evidence now justifies eliminating it in 2026?

To date, USCIS has not publicly provided a detailed explanation.

The Board of Immigration Appeals Has Long Recognized That Attorneys Matter

Immigration law contains an entire body of precedent recognizing the importance of competent legal representation.

The leading case is Matter of Lozada, 19 I&N Dec. 637 (BIA 1988).

Lozada established the framework for reopening immigration cases based on ineffective assistance of counsel.

The significance of Lozada extends far beyond motions to reopen.

The case reflects a broader principle:

Attorney performance affects immigration outcomes.

If legal representation did not matter, immigration courts would have little reason to reopen cases because of attorney misconduct or attorney error.

The existence of ineffective-assistance doctrines demonstrates that immigration law recognizes counsel as a meaningful safeguard against erroneous outcomes.

Federal Administrative Law Also Protects Representation

The principle extends beyond immigration law.

The Administrative Procedure Act recognizes representation rights before federal agencies.

See 5 U.S.C. § 555(b).

For decades, federal administrative law has recognized that legal representation helps promote:

• fairness;
• accuracy;
• procedural integrity;
• informed decision-making.

This broader administrative-law framework reinforces the importance of access to counsel in immigration adjudications.

The Real Issue Is Not Whether Representation Exists

Supporters of the policy may correctly note that immigrants still possess the right to counsel.

The more important question is different:

How meaningful is a right if exercising it becomes substantially more expensive?

The policy does not eliminate representation.

It increases the burden of obtaining representation.

That distinction matters.

The Financial Burden Falls on Immigrants

The most immediate effect of the policy is financial.

Before the policy:

• attorney preparation could occur remotely;
• attorney participation could occur telephonically;
• travel expenses were unnecessary.

After the policy:

Applicants may be responsible for:

• airfare;
• hotels;
• transportation;
• meals;
• attorney travel time;
• additional legal fees.

A single interview may now generate hundreds or even thousands of dollars in additional expenses.

Consider a client in Ohio represented by an attorney in California.

Previously, the attorney could prepare the client remotely and attend by telephone.

Now the client may be required to cover:

• round-trip airfare;
• overnight accommodations;
• local transportation;
• attorney travel time.

For many families, the additional cost may be significant.

For some, it may be prohibitive.

The Policy Reduces Access to Specialized Counsel

Modern immigration practice has become highly specialized.

Many attorneys focus almost exclusively on:

• EB-1A extraordinary ability petitions;
• National Interest Waivers;
• complex asylum cases;
• inadmissibility waivers;
• denaturalization defense;
• false claims to citizenship;
• unlawful voting allegations.

Remote participation allowed applicants to retain the attorney they believed was best qualified, regardless of location.

The new policy may force applicants to choose between:

• specialized counsel located elsewhere; or
• local counsel who can attend without substantial travel expenses.

For many immigrants, that is a significant change.

Lower-Income Immigrants May Be Affected Most

The burden is unlikely to fall equally.

Wealthier applicants may absorb the added costs.

Middle-income families may struggle but proceed.

Many lower-income immigrants may simply decide they cannot afford attorney attendance.

This creates an access-to-justice concern.

The right technically remains available.

The practical ability to exercise that right becomes more difficult.

Why Asylum Cases Raise Special Concerns

The impact may be particularly significant in affirmative asylum cases.

Asylum interviews frequently involve:

• trauma survivors;
• language barriers;
• credibility determinations;
• complex country-condition evidence;
• vulnerable applicants.

Attorneys often help:

• clarify misunderstandings;
• ensure accurate interpretation;
• organize evidence;
• protect procedural fairness.

Many asylum applicants rely on nonprofit organizations and pro bono counsel operating under limited budgets.

Requiring physical attendance may force some organizations to reduce participation because of travel costs and staffing limitations.

The Efficiency Problem

Perhaps the most surprising aspect of the policy is that it appears difficult to justify from an efficiency perspective.

For decades, government agencies have embraced technology to reduce costs and improve access.

Federal courts routinely conduct proceedings remotely.

Immigration courts increasingly utilize video technology.

USCIS encourages:

• online filing;
• electronic communication;
• digital case management.

Telephonic attorney appearances generally:

• reduce travel costs;
• improve scheduling flexibility;
• increase access to counsel;
• conserve resources;
• reduce barriers to representation.

The new policy eliminates many of those benefits.

A Policy That Increases Costs for Everyone

The policy shifts costs from the government to applicants.

Instead of a lawyer participating by telephone, clients may now pay for:

• airfare;
• hotel expenses;
• transportation costs;
• attorney travel time.

The policy also imposes costs on attorneys.

A lawyer who previously devoted one hour to a telephonic interview may now spend an entire day traveling.

Those hours cannot be spent:

• meeting clients;
• preparing cases;
• attending hearings;
• filing motions.

Those costs are often reflected in legal fees.

USCIS May Also Lose Efficiency

Experienced attorneys often make interviews more efficient.

Counsel frequently helps:

• organize evidence;
• narrow issues;
• explain legal questions;
• prevent misunderstandings;
• facilitate communication.

When counsel cannot attend because travel costs are prohibitive, officers may spend more time addressing confusion, requesting additional evidence, or conducting follow-up review.

The policy may therefore increase administrative burdens rather than reduce them.

What Problem Is USCIS Trying to Solve?

A fair question remains unanswered.

USCIS has not publicly identified evidence demonstrating that telephonic attorney participation was causing:

• fraud;
• attorney misconduct;
• operational failures;
• significant delays;
• reduced adjudicative quality.

Without a clearly articulated problem, critics may reasonably ask why the agency chose to impose additional costs and burdens on applicants.

Is This Part of a Larger Trend?

Viewed in isolation, the policy may appear minor.

Viewed alongside other recent developments—including expanded vetting, increased scrutiny of immigration benefits, heightened fraud investigations, and broader discretionary review frameworks—some observers see a larger pattern.

The telephonic-attendance policy does not eliminate any legal right.

But it arguably increases the burden of exercising one.

Critics contend that the cumulative effect of these policies is to make immigration benefits more expensive, more procedurally demanding, and more difficult to obtain.

Richard Herman’s Analysis

The most important question is not whether immigrants still have the right to legal representation.

They do.

The more important question is whether that right remains meaningfully accessible.

For decades, Congress, DHS regulations, USCIS procedures, federal administrative law, the Board of Immigration Appeals, and federal courts have all recognized that attorneys help protect against governmental error.

Technology made it possible for immigrants to access qualified counsel regardless of geography.

The new USCIS policy moves against that trend.

It increases costs.

It increases barriers.

It reduces flexibility.

And it may make specialized representation more difficult to obtain.

For some applicants, the change will be inconvenient.

For others, it may determine whether an attorney is physically present during one of the most important interactions they will ever have with the federal government.

Ultimately, the debate is not about whether the right to counsel still exists.

The debate is about whether meaningful access to that right should depend on an immigrant’s ability to pay for an attorney’s airplane ticket.

 

Frequently Asked Questions About USCIS’s New Attorney Attendance Policy

Does USCIS still allow attorneys at immigration interviews?

Yes. USCIS still allows attorneys and accredited representatives to attend immigration interviews. The policy change does not eliminate the right to legal representation. Instead, USCIS now generally requires attorneys to appear in person rather than participate remotely.

When did the new USCIS attorney attendance policy take effect?

The policy became effective on May 18, 2026. USCIS announced that attorneys and accredited representatives generally may no longer participate remotely in field office interviews, affirmative asylum interviews, and NACARA interviews except in limited circumstances.

What USCIS interviews are affected by the policy?

The policy generally applies to:

• Adjustment of Status (I-485) interviews;
• Marriage-based green card interviews;
• Employment-based green card interviews;
• Naturalization (N-400) interviews;
• Affirmative asylum interviews;
• Certain NACARA interviews.

Can my immigration attorney still participate by telephone?

Possibly, but only in limited circumstances.

USCIS has stated that exceptions may exist, but the agency has not clearly defined:

• what circumstances qualify;
• how requests should be made;
• what evidence may be required;
• who decides whether an exception is granted.

Can my attorney participate by video instead of appearing in person?

As a general rule, USCIS now requires in-person attendance. Applicants should not assume that video participation will be approved unless USCIS specifically authorizes an exception.

Why is this policy controversial?

Critics argue that the policy:

• increases legal costs;
• reduces access to specialized counsel;
• requires unnecessary travel;
• creates barriers to representation;
• undermines efficiency.

Supporters may argue that in-person participation improves consistency and accountability during interviews.

Does the policy eliminate my right to legal representation?

No.

Federal regulations continue to recognize the right to representation before DHS. Applicants may still hire attorneys and accredited representatives to advise them, prepare their cases, submit evidence, and attend interviews.

What regulation protects the right to legal representation before DHS?

The primary regulation is 8 CFR § 292.5(b), which provides that individuals appearing before DHS generally have the right to be represented by an attorney or accredited representative at no expense to the government.

Why is attorney representation important during USCIS interviews?

Attorneys may help:

• prepare applicants for questioning;
• organize evidence;
• clarify legal issues;
• address misunderstandings;
• protect against inaccurate statements;
• respond to officer concerns;
• identify potential inadmissibility issues.

In complex cases, attorney participation can significantly affect the outcome.

Will this policy increase immigration legal fees?

In many cases, yes.

Applicants may now be responsible for:

• attorney travel time;
• airfare;
• hotel expenses;
• transportation costs;
• additional preparation costs.

For some cases, these expenses may increase the overall cost of representation substantially.

Will the policy affect applicants who hire attorneys in other states?

Yes.

The policy may have the greatest impact on applicants represented by attorneys located outside the state where the interview is scheduled.

Previously, telephonic participation allowed applicants to retain specialized counsel regardless of geography.

Now, applicants may need to consider travel expenses when selecting counsel.

Why does this policy affect access to specialized immigration attorneys?

Many immigration attorneys focus on highly specialized areas such as:

• EB-1A Extraordinary Ability;
• National Interest Waivers;
• asylum law;
• inadmissibility waivers;
• denaturalization defense;
• false claims to citizenship;
• unlawful voting cases.

Because these attorneys often represent clients nationwide, requiring in-person attendance may make specialized representation more expensive or less accessible.

Did USCIS previously allow remote attorney participation?

Yes.

USCIS previously implemented a pilot program permitting remote attorney participation in certain asylum interviews. The existence of that program has led some observers to question why USCIS reversed course in 2026.

Does the policy affect asylum seekers?

Yes.

The policy applies to affirmative asylum interviews conducted by USCIS.

Many immigration advocates are particularly concerned because asylum interviews often involve:

• trauma survivors;
• language barriers;
• credibility determinations;
• vulnerable applicants.

Is the policy part of a broader trend in immigration enforcement?

Some observers believe so.

Critics point to recent developments involving:

• increased vetting;
• heightened fraud investigations;
• expanded discretionary review;
• additional interview scrutiny;
• more demanding adjudication procedures.

Others view the attorney-attendance policy as a routine procedural change.

Could the policy be challenged in court?

Potentially.

Future challenges could focus on:

• administrative law principles;
• agency decision-making;
• access-to-counsel concerns;
• procedural fairness issues.

Whether such challenges will be successful remains uncertain.

Should I hire an attorney for my USCIS interview?

Every case is different.

Attorney representation may be particularly valuable if your case involves:

• criminal history;
• prior immigration violations;
• prior visa denials;
• fraud allegations;
• false claims to citizenship;
• unlawful voting issues;
• inadmissibility concerns;
• asylum claims;
• complex family or employment-based immigration matters.

Applicants facing high-stakes interviews should consider consulting experienced immigration counsel before appearing before USCIS.

Need Help Preparing for a USCIS Interview?

USCIS interviews are becoming more consequential, more discretionary, and more procedurally demanding. If your case involves a green card interview, naturalization interview, asylum interview, prior immigration violations, criminal history, alleged fraud, false claims to citizenship, unlawful voting, or prior denials, experienced legal preparation may be critical.

Herman Legal Group helps immigrants, families, professionals, students, employers, and asylum seekers prepare for high-stakes USCIS interviews nationwide.

To discuss your case, schedule a consultation with Herman Legal Group or call +1-216-696-6170.

Resource Directory

Official Government and Legal Authority

• USCIS: Preparing for Your Affirmative Asylum Interview
• USCIS Form G-28, Notice of Entry of Appearance
• 8 CFR § 292.5: Representation and Appearances
• 8 CFR § 292.1: Representation of Others Before DHS
• 5 U.S.C. § 555(b): Administrative Procedure Act Right to Counsel

HLG Resources

• Book a Consultation with Herman Legal Group
• Herman Legal Group Homepage
• Cleveland Immigration Lawyers
• Citizenship and Naturalization Lawyer
• Marriage Green Card 2026 Mega-Guide
• What Happens If Your Adjustment of Status Is Denied?
• Did USCIS Walk Back the I-485 Memo?
• Best Law Firms for Refugee and Asylum Cases
• Media Interview Expert on Immigration

 

 

Why America’s Immigration Courts Are Not Independent

The structure of the immigration courts makes independent judicial review especially important. See our analysis of Loper Bright and immigration law for how the end of automatic Chevron deference can change challenges to agency interpretations.

Federal-court review also produced a major ruling striking down a USCIS benefits freeze in Rhode Island.

The History, Structure, and Growing Crisis of a Court System Controlled by the Executive Branch

By Richard T. Herman, Esq.

Key Takeaways

• Immigration courts are not part of the federal judiciary.
• Immigration judges are employees of the U.S. Department of Justice.
• The Attorney General exercises supervisory authority over immigration courts and the Board of Immigration Appeals (BIA).
• More than 3.2 million cases are currently pending before the immigration courts, the largest backlog in American history. (Trace Reports)
• EOIR’s FY 2027 budget request approaches $899 million, yet delays continue to grow. (Department of Justice)
• Critics across the political spectrum argue that immigration courts should be converted into independent Article I courts similar to the U.S. Tax Court.
• Federal judges—unlike immigration judges—do not work for the President, the Department of Justice, or the Attorney General.

Introduction

Every day, America’s immigration courts make decisions that can permanently alter lives. They determine:

• whether an asylum seeker receives protection;
• whether a lawful permanent resident is deported;
• whether a family remains together;
• whether a child may remain safely in the United States;
• whether a long-time resident loses everything and is removed from the country.

These decisions are among the most important made anywhere in the American legal system. Yet most Americans do not realize a startling fact:

Immigration courts are not actually independent courts.

Unlike federal district courts, federal courts of appeals, or the United States Supreme Court, immigration courts operate inside the executive branch of government. The judges who preside over removal proceedings are employees of the same branch of government responsible for enforcing immigration laws. That reality has generated criticism for decades from:

• immigration judges;
• former Board of Immigration Appeals members;
• the American Bar Association;
• the American Immigration Lawyers Association (AILA);
• academics;
• federal judges;
• members of Congress from both political parties.

The concern is not necessarily that individual immigration judges are biased. The concern is structural. The concern is whether a court system can truly be independent when it remains under the authority of the same executive branch that prosecutes the cases before it. As immigration court backlogs exceed 3.2 million pending cases and hearings are now being scheduled years into the future, that debate has become impossible to ignore. (Trace Reports) An independent judiciary could prioritize fairness over speed and enforcement.

What Most Americans Think Immigration Courts Are

Ask most Americans what an immigration judge is. The answer is usually something like: “A federal judge who decides immigration cases.” That answer sounds reasonable. It is also wrong. Immigration judges are not Article III federal judges. They are not members of the Judicial Branch. They do not sit within the federal judiciary established by Article III of the Constitution. Instead, immigration judges work for the Executive Office for Immigration Review (EOIR), a component of the U.S. Department of Justice. (Department of Justice) That means immigration judges ultimately work within the same executive branch headed by the President of the United States.

Who Controls Immigration Courts?

The chain of authority is surprisingly direct. At the top sits the President. The President appoints the Attorney General. The Attorney General oversees the Department of Justice. The Department of Justice oversees EOIR. EOIR oversees:

• immigration courts;
• immigration judges;
• the Board of Immigration Appeals;
• court administration;
• case management systems;
• court budgets.

The Attorney General also retains authority to certify selected immigration cases to himself or herself and issue binding precedent decisions that immigration judges nationwide must follow. (Department of Justice) No federal district judge answers to the Attorney General. No federal appellate judge answers to the Attorney General. Yet immigration judges do. That difference lies at the heart of the independence debate.

Why This Structure Is Unusual

Imagine a criminal court where:

• prosecutors worked for the Attorney General;
• trial judges worked for the Attorney General;
• appellate judges worked for the Attorney General;
• court administrators worked for the Attorney General.

Most Americans would immediately recognize a problem. Courts derive legitimacy from independence. The public generally accepts unfavorable rulings when they believe the judge was independent. That principle is one of the cornerstones of the American legal system. Immigration courts operate differently. While DHS prosecutors and DOJ judges work in different agencies, they remain part of the same executive branch. The appearance of independence is therefore weaker than in virtually every other major court system in the United States. The American Immigration Council argues that immigration courts’ structure creates a conflict of interest.

A Historical Accident, Not a Deliberate Design

One of the most important facts about immigration courts is that they were never intentionally designed to function as an independent judiciary. The current structure evolved gradually.

Before 1940

Immigration decisions were largely administrative. The federal government viewed immigration primarily as:

• border management;
• labor regulation;
• sovereignty protection.

Administrative officials—not judges—made most decisions.

1940

Immigration functions were transferred to the Department of Justice. The logic seemed straightforward. Immigration enforcement was viewed as a law enforcement issue. The adjudication system followed.

1952 Immigration and Nationality Act

The INA largely formalized existing procedures. Special Inquiry Officers, the predecessors of modern immigration judges, continued operating inside the executive branch.

1983 Creation of EOIR

The Department of Justice established EOIR in an effort to separate adjudication from immigration enforcement functions. The reform improved administration. But it did not create judicial independence. The courts remained inside DOJ. The judges remained DOJ employees. The Attorney General remained the final authority. (Department of Justice) Many scholars have described EOIR as a partial solution that addressed administrative concerns without solving the underlying independence problem.

Immigration Judges Are Not Federal Judges

This distinction matters. Federal district judges enjoy protections designed to insulate them from politics. Those protections include:

• life tenure;
• salary protection;
• constitutional independence;
• separation from executive branch control.

Immigration judges receive none of these protections. They are career executive branch employees. They operate within an agency budget. They are subject to agency policies. Their courts can be reorganized by executive officials. The rules governing their work can change dramatically from one administration to the next. This does not mean immigration judges lack integrity. Most immigration judges are dedicated public servants attempting to apply complex laws under extraordinary workloads. The issue is institutional design. Not personal character.

Why Independence Matters

The importance of judicial independence becomes clearer when comparing immigration courts to federal district courts. Federal judges are appointed by presidents. Many current federal judges were appointed by President Trump. Many others were appointed by Presidents Biden, Obama, Bush, and Clinton. But once confirmed, they do not work for those presidents. A Trump-appointed federal judge does not answer to Donald Trump. A Biden-appointed judge did not answer to Joe Biden. Federal judges regularly rule against the administrations that appointed them. That is precisely what judicial independence is supposed to accomplish. Over the past several years, federal district judges appointed by both Republican and Democratic presidents have issued thousands of decisions involving:

• immigration detention;
• habeas corpus petitions;
• asylum restrictions;
• expedited removal procedures;
• parole policies;
• travel restrictions;
• TPS litigation;
• deportation practices.

Sometimes the government wins. Sometimes the government loses. But the legitimacy of those decisions rests largely on the independence of the decision-maker. Immigration courts lack many of those same structural safeguards.

The Crisis Has Reached Historic Levels

The debate over court independence might once have seemed theoretical. Today it is not. The immigration court system is facing unprecedented strain. According to TRAC’s April 2026 data:

• 3,267,302 active cases were pending before the immigration courts;
• more than 2.3 million asylum seekers were awaiting hearings or decisions;
• hearings are now being scheduled years into the future. (Trace Reports)

At the same time, the Department of Justice is requesting approximately $899 million for EOIR in FY 2027, reflecting continued efforts to expand court operations and address the backlog. (Department of Justice) Yet despite increased spending, increased hiring, expanded court facilities, and technological modernization, the backlog remains measured in the millions. (Trace Reports) The obvious question is no longer whether more judges are needed. The question is whether the structure itself has become part of the problem. The American Immigration Lawyers Association advocates for an independent immigration court system. Proponents argue that independent immigration courts would reduce political interference.

The Independence Problem: How Politics, Attorney General Control, and Executive Branch Oversight Shape America’s Immigration Courts

Key Takeaways

• Immigration courts remain under the authority of the U.S. Department of Justice.
• The Attorney General possesses powers over immigration courts that have no equivalent in the federal judiciary.
• Presidential administrations regularly reshape immigration court policies through executive branch leadership changes.
• Both Republican and Democratic administrations have used Attorney General review authority to influence immigration law.
• Federal judges are institutionally independent; immigration judges are not.
• Critics argue that the current structure undermines consistency, public confidence, and due process.
• Supporters of reform advocate converting EOIR into an independent Article I court similar to the U.S. Tax Court.

Why Judicial Independence Matters

The principle of judicial independence is one of the oldest foundations of American democracy. The concept is simple:

Courts should decide cases based on law and facts, not political priorities.

That principle is why federal judges enjoy protections designed to shield them from political pressure. Federal district judges:

• do not work for the President;
• do not report to Cabinet officials;
• cannot be removed because politicians dislike their decisions;
• cannot have their salaries reduced;
• cannot be reassigned because they rule against the government.

The purpose of those protections is not to benefit judges. The purpose is to protect litigants. People are more likely to accept an unfavorable ruling when they believe the judge was independent. That legitimacy is essential to the rule of law. Proponents argue that independent immigration courts would reduce political interference.

Immigration Courts Operate Under a Different Model

Immigration courts were never granted those protections. Instead, they remain housed within the Executive Office for Immigration Review (EOIR), a component of the U.S. Department of Justice. Official EOIR information is available through the DOJ’s EOIR website: https://www.justice.gov/eoir Unlike federal judges, immigration judges are employees of the executive branch. They serve within an agency overseen by political appointees. The Attorney General ultimately controls the immigration court system. This distinction lies at the center of the independence debate.

The Attorney General’s Extraordinary Power

No feature of immigration court structure better illustrates the independence problem than Attorney General certification authority. Under federal regulations, the Attorney General may direct that a case be referred for review. After review, the Attorney General may issue a precedential decision binding on:

• every immigration judge;
• every BIA member;
• every immigration court nationwide.

Government source: https://www.justice.gov/eoir This authority has repeatedly been used by administrations of both political parties. Unlike the Supreme Court, however, the Attorney General is not a neutral judicial officer. The Attorney General is:

• the nation’s chief law enforcement officer;
• a member of the President’s Cabinet;
• a political appointee;
• an executive branch official.

In effect, a political appointee may establish nationwide immigration court precedent. Few democracies permit this degree of executive control over adjudication.

Imagine This Happening in Federal Court

Suppose the Attorney General announced:

“I disagree with how federal judges are handling asylum claims, detention cases, or constitutional challenges. Therefore, I will personally rewrite the legal standards and issue binding precedent.”

That would be impossible. The Attorney General has no authority over federal district courts. No authority over federal courts of appeals. No authority over the Supreme Court. Yet in immigration courts, Attorney General precedent decisions remain one of the most powerful forces shaping immigration law. That reality is one reason organizations such as the American Bar Association and AILA have repeatedly supported independent immigration court proposals.

Additional Reading

AILA Policy Brief: https://www.aila.org/library/policy-brief-america-needs-independent-fair-and-efficient-immigration-courts ABA Position: Testimony in support of Article I immigration courts

Elections Can Reshape Immigration Courts

Another consequence of executive branch control is policy volatility. Federal courts generally remain stable across administrations. Immigration courts often do not. When administrations change, immigration court policies frequently change with them. Examples have included:

• administrative closure authority;
• continuance standards;
• asylum eligibility rules;
• prosecutorial discretion;
• detention policies;
• docket priorities;
• enforcement priorities;
• motions to reopen standards.

As a result, immigration practitioners often describe immigration law as one of the most politically unstable areas of American law. The law itself may remain unchanged. The interpretation and implementation of the law often changes dramatically.

The BIA and Executive Branch Influence

The Board of Immigration Appeals (BIA) serves as the highest administrative immigration tribunal. Official BIA information: https://www.justice.gov/eoir/board-of-immigration-appeals The Board’s decisions often determine:

• detention rights;
• asylum eligibility;
• cancellation of removal standards;
• reopening procedures;
• adjustment of status eligibility;
• removal defenses.

Because BIA members are appointed through executive branch processes, critics have long argued that Board composition may significantly affect immigration jurisprudence. This concern is not unique to one administration. It has existed under Republican and Democratic administrations alike. The issue is structural. The appellate body deciding immigration cases remains part of the same executive branch responsible for immigration enforcement. The BIA’s backlog reached nearly 220,000 cases by 2025. The Board of Immigration Appeals has 15 members after recent cuts.

The Bond Jurisdiction Controversy

One recent example involves detention and bond jurisdiction. Historically, many detained immigrants could request bond hearings before immigration judges. Over the past several years, however, DHS and EOIR increasingly advanced interpretations that classified certain individuals as arriving applicants for admission under INA §235 rather than detainees under INA §236. The practical consequence was significant. If the individual fell within §235 detention authority, immigration judges frequently lacked authority to grant bond. Release decisions instead became matters of DHS parole discretion. Critics argue that this shift reduced access to neutral review and expanded executive detention authority. Supporters contend the interpretation follows statutory text. The broader point is this: The immigration courts frequently adopted legal interpretations expanding detention authority while independent federal courts often subjected those same interpretations to constitutional scrutiny through habeas litigation.

The Courthouse Arrest Controversy

Another issue drawing national attention involves courthouse arrests. In some jurisdictions, DHS moved to dismiss removal proceedings before an immigration judge. After termination of proceedings, ICE officers allegedly arrested individuals near or outside the courtroom and initiated expedited removal procedures. Critics argued that these practices transformed immigration courts into enforcement gateways. Supporters argued that DHS simply exercised lawful enforcement authority. Regardless of one’s position, the controversy highlights a recurring perception problem: Many immigrants do not view immigration courts as independent from the enforcement agencies appearing before them. Public confidence suffers when litigants perceive courts and prosecutors as operating within the same institutional structure.

Compare This to Federal Judges Hearing Immigration Cases

The contrast becomes most obvious in federal court. Over the last several years, federal district judges have issued thousands of immigration-related decisions involving:

• detention;
• asylum restrictions;
• expedited removal;
• TPS;
• parole programs;
• travel bans;
• constitutional challenges;
• habeas corpus petitions.

Many of those judges were appointed by President Trump. Many were appointed by Presidents Biden, Obama, Bush, and Clinton. Yet their rulings often cut against the preferences of the administrations that appointed them. Why? Because they do not work for those administrations. A Trump-appointed judge is not subordinate to Donald Trump. A Biden-appointed judge was not subordinate to Joe Biden. Their duty is to the Constitution and the law. That institutional independence helps explain why federal courts remain trusted even when their decisions are controversial.

The Rise of Performance Metrics and Quotas

Another criticism involves immigration judge performance measures. Several years ago, DOJ implemented case completion quotas and performance standards. Supporters argued the backlog crisis required measurable productivity standards. Critics responded that judges should not be evaluated like production workers. Imagine:

• criminal judges receiving monthly conviction quotas;
• federal judges receiving dismissal targets;
• bankruptcy judges being graded on case completion numbers.

Most Americans would reject such metrics. Yet immigration judges have operated under various forms of performance evaluation tied to case management goals. The debate reflects a deeper tension: Are immigration courts courts? Or are they administrative agencies attempting to process large volumes of cases? The answer remains unclear.

Why Former Immigration Judges Have Become Some of the Strongest Critics

Many of the most vocal supporters of independent immigration courts are former immigration judges themselves. Organizations such as the National Association of Immigration Judges have repeatedly warned that executive branch control threatens:

• judicial independence;
• consistency;
• public confidence;
• due process.

Numerous retired judges have testified before Congress in favor of creating an Article I immigration court. Their argument is not that immigration enforcement should stop. Their argument is that adjudication should be separated from enforcement.

The Core Question

The debate ultimately comes down to a simple question:

Can a court truly be independent when it remains under the authority of the same executive branch that is seeking a particular outcome?

For decades, that question remained largely academic. Today, with more than 3.2 million pending cases, increasing detention litigation, rising federal court intervention, and growing public scrutiny, the question has become central to the future of America’s immigration system.

The $900 Million Question: Why America’s Immigration Court Backlog Keeps Growing Despite More Judges, More Funding, and More Technology

Key Takeaways

• Immigration court backlogs have surpassed 3.2 million pending cases, the largest in American history.
• Congress has repeatedly increased funding for immigration courts.
• EOIR now employs nearly 700 immigration judges, more than ever before.
• Despite record hiring and record spending, delays continue to worsen.
• Structural inefficiencies may be as important as staffing shortages.
• Many experts argue that independent Article I immigration courts would improve efficiency, consistency, and public confidence.
• Other democracies use more independent immigration adjudication systems than the United States.

The Biggest Question Nobody Wants to Ask

For years, politicians from both parties have proposed the same solution to immigration court delays:

Hire more judges.

Congress appropriates more money. The Department of Justice hires more immigration judges. New courtrooms are opened. Technology systems are upgraded. Remote hearings are expanded. Case management systems are modernized.

Yet the backlog continues growing.

Why? If adding judges and increasing budgets were sufficient, the crisis should already be improving. Instead, the opposite has happened. As of 2026, immigration courts face approximately 3.2 million pending cases, an increase that would have seemed unimaginable only a decade ago. According to the latest data from the Transactional Records Access Clearinghouse (TRAC), the backlog remains at historic levels despite unprecedented hiring efforts. This raises an uncomfortable possibility:

The problem may not simply be a lack of resources. The problem may be the structure itself.

The Numbers Are Staggering

To appreciate the scale of the crisis, consider the following:

Immigration Court Backlog

• Approximately 3.27 million pending cases
• More than 2.3 million pending asylum-related matters
• Hundreds of thousands of appeals pending before the Board of Immigration Appeals
• Hearing dates often scheduled years into the future

Source: https://tracreports.org/immigration/quickfacts/eoir.html For many immigrants, the defining feature of the immigration court system is no longer adjudication. It is delay.

What Does a 3.2 Million Case Backlog Actually Mean?

The human consequences are often overlooked. For immigrants:

• Families remain in limbo for years.
• Witnesses disappear.
• Evidence becomes stale.
• Children age out of eligibility categories.
• Employers lose workers.
• Psychological stress becomes chronic.

For asylum seekers:

• Protection claims remain unresolved for years.
• Family reunification is delayed.
• Long-term planning becomes impossible.

For employers:

• Workforce uncertainty increases.
• Recruitment strategies become more complicated.
• Compliance costs rise.

For taxpayers:

• Every delay carries a cost.

The Cost of Delay

Delay is expensive. Every postponed hearing requires:

• courtroom staff;
• judicial resources;
• clerical support;
• interpreters;
• attorneys;
• detention resources in some cases;
• electronic record maintenance.

Cases often cycle through:

• continuances;
• transfers;
• appeals;
• remands;
• motions to reopen;
• administrative processing.

Each additional step consumes resources. The longer a case remains pending, the more expensive it becomes.

Congress Has Already Increased Funding

One common misconception is that immigration courts are underfunded simply because Congress refuses to spend money. The reality is more complicated. EOIR’s budget has increased dramatically over the past decade. For FY 2027, the Department of Justice requested approximately $899 million for EOIR operations. Government source: https://www.justice.gov/jmd/media/1433166/dl Congress has repeatedly funded:

• new immigration judges;
• new support staff;
• expanded facilities;
• electronic filing systems;
• remote hearing technology;
• case management modernization.

Yet the backlog continues growing. The obvious question becomes:

Why isn’t the investment producing proportional results?

The Judge Hiring Strategy Has Reached Its Limits

For years, the primary solution has been hiring.

• More judges.
• More support staff.
• More courtrooms.
• More docket capacity.

EOIR recently announced that the immigration judge corps has expanded to nearly 700 judges, the largest number in agency history. Government source: https://www.justice.gov/opa/pr/eoir-announces-77-immigration-judges-and-5-temporary-immigration-judges On paper, that sounds impressive. But mathematics tells a different story.

Even if every judge handled thousands of cases annually, the system continues receiving new filings at extraordinary rates. The result resembles a treadmill that continually accelerates.

No matter how fast judges work, the incoming volume often exceeds capacity. In 2025, nearly 100 immigration judges were fired nationwide. Immigration judges lack statutory protection against removal without cause.

The Productivity Trap

This has led to one of the most controversial developments in immigration court history: performance metrics and case completion quotas. The Department of Justice has periodically evaluated immigration judges using numerical productivity measures. Supporters argue:

• taxpayers deserve efficiency;
• delays are unacceptable;
• performance should be measurable.

Critics argue:

• judges are not factory workers;
• speed should not outweigh fairness;
• due process requires individualized review.

The problem becomes especially acute when courts are expected simultaneously to:

• move cases quickly;
• ensure fairness;
• handle increasingly complex legal issues;
• comply with changing policies.

The competing goals often conflict.

Why Independent Courts Tend to Function Differently

Supporters of reform frequently point to an important distinction: Most courts are designed primarily to adjudicate. Immigration courts are often expected to both adjudicate and implement executive branch priorities. Those goals are not always compatible. The DOJ uses enforcement goals to direct resources and case management in immigration courts. When administrations prioritize rapid removals, court resources may be redirected. When administrations prioritize backlog reduction, judges may face pressure to increase productivity. When administrations change, priorities often change as well. Independent courts typically experience far less policy volatility. There are over 700 immigration judges in the U.S. immigration courts. Immigration judges are appointed by the Attorney General. Immigration judges do not have life tenure like federal judges. Immigration judges lack the authority to hold attorneys in contempt, limiting their power. EOIR imposed rigid case completion goals on immigration judges. Immigrants must find and pay for their own lawyers. Over 3.5 million cases are pending in immigration courts. Judges can issue oral decisions at the end of removal hearings.

Compare the U.S. Tax Court

One frequently proposed model is the U.S. Tax Court. Official website: https://www.ustaxcourt.gov The Tax Court is an Article I court. It is independent from the Internal Revenue Service. This distinction is important. The IRS collects taxes. The Tax Court resolves disputes involving the IRS. The adjudicator is institutionally separate from the enforcement agency. Most Americans would find that arrangement logical. Imagine if IRS employees served as judges in tax disputes. Public confidence would collapse. Yet immigration adjudication continues operating under a structure that many observers believe creates a similar appearance problem.

Bankruptcy Courts Provide Another Example

Bankruptcy courts offer another useful comparison. Official information: https://www.uscourts.gov Bankruptcy judges do not work for creditors. They do not work for debtors. Their legitimacy depends on neutrality. Businesses and individuals trust the process because the adjudicator is independent. The same principle applies to immigration cases. Whether the outcome favors the government or the immigrant, public confidence depends heavily on confidence in the decision-maker.

How Other Democracies Handle Immigration Adjudication

The United States is increasingly an outlier.

Canada

Canada relies on the Immigration and Refugee Board (IRB), an administrative tribunal that operates independently from immigration enforcement authorities. Official source: https://irb.gc.ca

United Kingdom

The United Kingdom utilizes independent tribunal systems that are separate from immigration enforcement agencies.

Australia

Australia provides independent merits review through specialized tribunals separate from frontline immigration enforcement functions. Official source: https://www.art.gov.au Although no system is perfect, many democracies have moved toward greater adjudicative independence rather than greater executive control.

The Real Courts, Rule of Law Act

For years, lawmakers have proposed creating an independent Article I immigration court. One of the best-known proposals is the Real Courts, Rule of Law Act. Congressional information: https://lofgren.house.gov/media/press-releases/lofgren-leads-bill-create-independent-immigration-court-system Supporters argue such a system would:

• reduce political influence;
• improve consistency;
• strengthen due process;
• increase public confidence;
• improve administrative efficiency.

Opponents argue:

• transition costs could be substantial;
• additional bureaucracy might emerge;
• independence alone would not eliminate backlogs.

The debate continues.

Would Independent Courts Actually Reduce Delays?

This is the critical question. The answer is probably:

Not immediately.

An independent court system would not magically eliminate millions of pending cases. However, supporters argue it could improve several long-term structural problems:

Greater Consistency

Less policy whiplash between administrations.

Better Resource Planning

Multi-year budgeting independent of political cycles.

Reduced Litigation

More consistent decisions could produce fewer appeals and federal court challenges.

Increased Public Confidence

Parties may be more willing to accept outcomes from genuinely independent adjudicators.

Improved Judicial Retention

Experienced judges may be more likely to remain in a system perceived as independent.

The Hidden Cost: Federal Court Intervention

Another overlooked expense is federal litigation. As immigration courts face criticism and constitutional challenges increase, federal courts increasingly become involved. Federal judges now regularly hear:

• habeas corpus petitions;
• detention challenges;
• due process claims;
• APA lawsuits;
• constitutional challenges to immigration policies.

When administrative adjudication loses credibility, litigants often seek relief elsewhere. The result is more litigation, more costs, and additional delays.

The Economic Argument for Reform

Supporters of independent immigration courts increasingly frame reform as an economic issue rather than merely a civil rights issue. The argument is straightforward: A court system handling millions of cases should be designed for:

• stability;
• predictability;
• efficiency;
• public confidence.

Repeated policy reversals, shifting priorities, and structural uncertainty create inefficiencies that taxpayers ultimately fund. The issue is no longer simply fairness. It is governance.

The Bottom Line

The immigration court crisis is no longer a temporary backlog problem. It is a structural challenge affecting:

• immigrants;
• families;
• employers;
• taxpayers;
• federal courts;
• the rule of law itself.

Congress has increased funding. DOJ has hired more judges. Technology has improved. Yet the backlog continues to grow. At some point, policymakers must confront a difficult question:

If decades of additional funding, staffing, and administrative reform have not solved the problem, is the problem the structure itself?

That question lies at the center of the growing movement to transform immigration courts from executive branch agencies into truly independent courts.

When Courts and Enforcement Become Too Close: How Executive Branch Control Shapes Immigration Adjudication

Key Takeaways

• Immigration courts remain under the supervision of the Department of Justice.
• The Attorney General retains authority to personally review and reverse immigration cases.
• Immigration judges and BIA members operate within the same executive branch responsible for immigration enforcement.
• Numerous immigration court policies have shifted dramatically when presidential administrations changed.
• Federal judges often review and sometimes reject immigration policies advanced by executive agencies.
• The issue is not whether individual immigration judges are biased.
• The issue is whether the structure creates an appearance—and sometimes a reality—of institutional alignment with enforcement priorities.

The Debate Is Not About Individual Judges

Before discussing controversial examples, an important distinction must be made. The argument for independent immigration courts is not that immigration judges are dishonest. Nor is it that immigration judges deliberately ignore the law. Most immigration judges are experienced attorneys and public servants attempting to manage overwhelming caseloads under difficult circumstances. The problem is structural. The concern is that no court system deciding matters of such extraordinary consequence should remain under the authority of the same executive branch that is pursuing removal. In other words:

The issue is not individual bias. The issue is institutional design.

What Independence Looks Like

Consider a federal district judge. Federal judges are appointed by presidents. Some are appointed by Republicans. Others are appointed by Democrats. Yet after confirmation, they become independent. A judge appointed by President Trump does not work for President Trump. A judge appointed by President Biden did not work for President Biden. Federal judges regularly issue decisions rejecting the legal arguments of the administrations that appointed them. Indeed, one of the defining features of constitutional democracy is that judges can rule against the government without fear of professional consequences. Their duty is to the Constitution and the law. Not to political leadership. That independence creates public confidence. People may disagree with decisions. But they generally trust the legitimacy of the process.

Immigration Judges Occupy a Different Position

Immigration judges do not enjoy those same institutional protections. They are employees of the Executive Office for Immigration Review (EOIR). EOIR is part of the Department of Justice. Official source: https://www.justice.gov/eoir Their appellate court—the Board of Immigration Appeals—is also part of DOJ. The Attorney General oversees both. This creates a system unlike virtually every other major adjudicative system in the United States. The prosecutor and the court ultimately operate within the same executive branch hierarchy.

Attorney General Certification: A Power Unlike Any Other

Perhaps the clearest example of executive influence is the Attorney General’s certification authority. The Attorney General may take a pending immigration case away from the Board of Immigration Appeals and personally issue a binding nationwide precedent. Government source: https://www.justice.gov/eoir No equivalent authority exists in federal district court. No Attorney General can:

• reverse a federal district judge;
• rewrite federal appellate precedent;
• overrule the Supreme Court.

Yet immigration courts operate under a system where executive branch officials may directly shape nationwide legal standards. This authority has been exercised by Attorneys General from both political parties. The concern is not partisan. The concern is structural.

The BIA and the Shifting Direction of Immigration Law

Another recurring criticism involves the Board of Immigration Appeals. The BIA serves as the highest administrative immigration tribunal. Its decisions frequently determine:

• detention rights;
• asylum eligibility;
• motions to reopen;
• cancellation of removal;
• adjustment of status;
• discretionary relief.

Over the years, immigration practitioners have observed significant swings in BIA jurisprudence as administrations changed. Some decisions expanded relief. Others restricted relief. Some increased procedural protections. Others narrowed them. The issue is not whether every decision was correct or incorrect. The issue is that the appellate tribunal remains embedded within the same executive branch that establishes immigration enforcement priorities. Critics argue that appellate adjudication should be insulated from those pressures.

The Administrative Closure Wars

Perhaps no issue better illustrates political volatility than administrative closure. Administrative closure allows immigration judges to temporarily remove cases from active dockets. Different administrations have taken dramatically different positions regarding whether judges possess this authority. The result has been years of litigation, conflicting precedents, reversals, and policy changes. Cases have moved from:

• permitted;
• prohibited;
• partially restored;
• fully restored;
• challenged again.

The underlying statutes remained largely unchanged. The interpretation changed. This illustrates a recurring theme throughout immigration adjudication: Political transitions frequently produce legal instability. Independent courts typically experience far less volatility.

The Growing Divide Between Immigration Courts and Federal Courts

Over the last decade, a pattern has emerged. Administrative tribunals often interpret immigration statutes through the lens of executive branch priorities. Federal judges frequently approach the same issues through constitutional analysis. As a result, federal courts increasingly serve as a corrective mechanism. The growing volume of:

• habeas litigation;
• Administrative Procedure Act lawsuits;
• constitutional challenges;
• mandamus actions;

suggests that many litigants no longer view immigration courts as the final safeguard for due process concerns. Instead, they increasingly seek review from truly independent judges. That trend should concern policymakers regardless of political ideology.

Why Public Confidence Matters

Courts ultimately depend upon legitimacy. People comply with decisions not merely because they must. They comply because they believe the process was fair. Due process requires a fair hearing before a neutral decision-maker. Public confidence requires more than fairness. It requires the appearance of fairness. Even perfectly fair judges may struggle to maintain public confidence when they operate inside the same executive branch responsible for prosecution and enforcement. This is why so many scholars, judges, practitioners, and organizations continue advocating for structural reform. The issue is not individual integrity. The issue is institutional independence.

The Central Question

If immigration courts were being designed today from scratch, would Congress intentionally place them inside the Department of Justice? Would Congress create a system where:

• judges work for the executive branch;
• appellate judges work for the executive branch;
• prosecutors work for the executive branch;
• the Attorney General may establish binding precedent?

Or would Congress create an independent court system similar to:

• the U.S. Tax Court;
• the Court of Federal Claims;
• bankruptcy courts;
• other specialized adjudicative bodies?

That question increasingly drives the modern reform movement. And it leads directly to the debate over Article I immigration courts.

The Solution? What an Independent Article I Immigration Court Could Look Like

Key Takeaways

• Many legal scholars, former immigration judges, bar associations, and lawmakers support replacing EOIR with an independent Article I immigration court.
• Article I courts already exist in the United States, including the U.S. Tax Court.
• An independent immigration court would remove immigration judges and the BIA from Department of Justice control.
• Supporters argue reform would increase consistency, due process, public confidence, and long-term efficiency.
• Critics argue independence alone would not eliminate backlogs and could create transition costs.
• The debate is no longer whether immigration courts face a crisis.
• The debate is whether structural reform is necessary to solve it.

If We Were Designing the System Today, Would We Build It This Way?

Imagine Congress was creating an immigration court system from scratch in 2026. Lawmakers know:

• immigration cases affect millions of people;
• deportation can separate families;
• asylum decisions may determine life or death;
• lawful permanent residents may lose their status;
• employers depend upon predictable outcomes;
• taxpayers spend nearly $1 billion annually on immigration courts.

Would Congress deliberately place those courts inside the Department of Justice? Would Congress create a system where:

• judges work for the executive branch;
• appellate judges work for the executive branch;
• prosecutors work for the executive branch;
• the Attorney General may rewrite precedent?

Most reform advocates believe the answer is no. They argue that the current structure exists largely because of historical accident rather than deliberate constitutional design.

What Is an Article I Court?

Many Americans are familiar with Article III courts. Those include:

• U.S. District Courts
• U.S. Courts of Appeals
• The U.S. Supreme Court

Less well known are Article I courts. These are specialized federal courts created by Congress. Examples include:

• U.S. Tax Court
• U.S. Court of Federal Claims
• U.S. Court of Appeals for Veterans Claims

Official Tax Court website: https://www.ustaxcourt.gov These courts perform judicial functions while remaining institutionally independent from the agencies whose decisions they review. That distinction is crucial.

Why the Tax Court Is the Most Common Comparison

The U.S. Tax Court is often cited as the best model for immigration court reform. Consider the comparison.

Current Immigration System

DHS enforces immigration laws. DOJ operates immigration courts. DOJ operates the BIA. The Attorney General oversees the system.

Tax System

IRS collects taxes. IRS audits taxpayers. IRS assesses liabilities. The U.S. Tax Court independently reviews disputes. The IRS does not control the court. The Commissioner of Internal Revenue cannot rewrite Tax Court precedent. The Secretary of the Treasury cannot personally reverse Tax Court decisions. Most Americans would consider that arrangement fair. Supporters of immigration court reform ask a simple question:

Why should tax disputes receive more judicial independence than deportation cases?

The Core Reform Proposal

The most common proposal would remove EOIR from the Department of Justice and create an independent Article I immigration judiciary. Under most reform plans:

Immigration Judges Would Become Independent Adjudicators

Judges would no longer be DOJ employees.

The BIA Would Become an Independent Appellate Court

Appellate review would remain available, but outside DOJ control.

The Attorney General Would Lose Certification Authority

Political appointees would no longer issue binding immigration court precedent.

Courts Would Control Their Own Administration

Budgeting, staffing, and judicial administration would be managed independently.

Long-Term Planning Would Improve

Court operations would no longer shift dramatically whenever administrations change.

The Real Courts, Rule of Law Act

One of the most prominent reform proposals is the Real Courts, Rule of Law Act. Congressional information: https://lofgren.house.gov/media/press-releases/lofgren-leads-bill-create-independent-immigration-court-system The proposal would:

• establish an Article I immigration court;
• remove adjudication from DOJ;
• create a trial division, an appellate division, and an administrative division;
• provide greater judicial protections;
• enhance separation between adjudication and enforcement.

This design resembles other specialized courts built around a clear internal structure. Supporters include:

• former immigration judges;
• immigration law scholars;
• AILA;
• numerous legal organizations.

Why Former Immigration Judges Support Reform

Perhaps the strongest support for independence comes from those who worked inside the system. Many retired immigration judges have concluded that structural reform is necessary, and support also comes from leaders in the immigration bar, including a former chair of a relevant immigration-law body and the Federal Bar Association. Their concerns frequently include:

• political interference;
• inconsistent precedent;
• shifting enforcement priorities;
• docket manipulation;
• public confidence;
• due process concerns.

Notably, these critiques come from individuals who served within the immigration court system itself. This is not merely an outside criticism. It is increasingly an internal one.

Could Independence Reduce Backlogs?

Critics sometimes respond:

“Even if courts became independent, 3.2 million cases would still exist.”

That is true. Independence would not magically eliminate the backlog. But supporters argue that independence could improve several factors that contribute to inefficiency.

Greater Stability

One of the biggest challenges facing immigration courts is policy volatility. Administrative priorities often change every four years. Sometimes faster. Independent courts could provide:

• more predictable procedures;
• greater continuity;
• less litigation over changing policies.

Reduced Administrative Whiplash

Over the last decade, immigration courts have experienced repeated reversals involving:

• administrative closure;
• continuances;
• asylum standards;
• prosecutorial discretion;
• docket management.

Each reversal creates:

• retraining costs;
• new litigation;
• procedural confusion.

Independent courts could reduce this cycle.

Better Judicial Retention

Immigration judges often face:

• extraordinary caseloads;
• changing directives;
• political scrutiny.

A more independent judiciary might improve retention and recruitment. Experienced judges are valuable. When judges leave, institutional knowledge leaves with them.

More Public Confidence

Courts depend upon legitimacy. People are more likely to accept unfavorable outcomes when they believe the decision-maker was independent. This principle applies equally to:

• immigrants;
• employers;
• taxpayers;
• the government.

Confidence in outcomes is often as important as the outcomes themselves.

International Comparisons

The United States is increasingly unusual among advanced democracies.

Canada

The Immigration and Refugee Board operates independently from immigration enforcement authorities. Official source: https://irb.gc.ca

United Kingdom

Immigration appeals are heard by independent tribunals. Official source: https://www.gov.uk/courts-tribunals

Australia

Independent review bodies hear immigration-related appeals. Official source: https://www.art.gov.au No system is perfect. However, many countries have moved toward greater separation between enforcement and adjudication. The United States largely has not.

The Constitutional Argument

Many scholars believe immigration adjudication increasingly resembles judicial work rather than administrative processing. Immigration judges decide:

• facts;
• credibility;
• statutory interpretation;
• constitutional claims;
• procedural rights.

They conduct trials. They hear testimony. They issue written decisions. They adjudicate disputes between parties. Those functions look increasingly judicial. The more judicial the role becomes, the stronger the argument for judicial independence.

The Counterarguments

Not everyone supports reform. Several arguments are commonly raised.

Independence Won’t Solve Everything

True. More judges and resources would still be needed.

Transition Costs Could Be Significant

Creating a new court system would require substantial planning and funding.

Immigration Is Inherently Executive Some scholars argue immigration control is fundamentally an executive function and should remain within executive agencies.

Congress May Lack Political Consensus

Structural reform requires legislation. Legislation requires political agreement. That remains difficult. These objections deserve serious consideration. The debate is not one-sided.

Why the Reform Movement Continues Growing

Despite these objections, support for independent immigration courts continues expanding. The reason is simple: The current system faces criticism from nearly every direction. Advocates criticize it. Former judges criticize it. Scholars criticize it. Federal judges increasingly scrutinize it. Even many government officials acknowledge that the backlog has reached unsustainable levels. When a system generates criticism from multiple perspectives, structural reform becomes increasingly difficult to avoid.

The Bigger Question

The debate ultimately extends beyond immigration. It concerns the nature of courts themselves. What makes a court legitimate? What makes people trust outcomes? What creates confidence in the rule of law? For centuries, democracies have answered those questions similarly:

Courts should be independent from those seeking a particular outcome.

The more closely adjudicators become connected to prosecutors, political leaders, or enforcement agencies, the more difficult it becomes to maintain public confidence. That principle applies whether the issue is taxes, veterans’ benefits, bankruptcy, criminal law—or immigration.

The Future of Immigration Courts

The question is no longer whether immigration courts face a crisis. The backlog exceeds 3.2 million cases. The budget approaches $900 million annually. Federal litigation continues growing. Political disputes remain intense. The real question is whether Congress will eventually conclude that incremental reforms are no longer sufficient. If that day comes, the most likely solution will be an independent Article I immigration court. The debate has already begun. The only uncertainty is when it will finally produce action.

The Future of Immigration Courts: Will America Finally Create an Independent Immigration Judiciary?

Executive Summary

America’s immigration court system stands at a crossroads.

• The backlog exceeds 3.2 million pending cases.
• Federal courts are increasingly intervening.
• Detention litigation is exploding.
• Congress continues appropriating additional funds.
• New immigration judges continue being hired.
• Yet confidence in the system continues to erode.

The central question facing policymakers is no longer whether immigration courts face a crisis. The question is whether the current structure can realistically solve that crisis. Or whether the United States will eventually be forced to create an independent immigration judiciary.

The Immigration Court System Is Reaching a Breaking Point

The current system faces simultaneous pressures from every direction.

Pressure From Case Volume

The immigration court backlog exceeds 3 million pending cases. Official TRAC Data: https://tracreports.org/immigration/quickfacts/eoir.html Every month, new cases enter the system. Even record hiring has not reversed the trend.

Pressure From Federal Courts

Federal judges increasingly hear:

• habeas corpus petitions;
• detention challenges;
• constitutional claims;
• Administrative Procedure Act lawsuits;
• mandamus actions;
• due process challenges.

Pressure From Congress

Congress faces growing demands for:

• more judges;
• more funding;
• faster adjudication;
• stronger due process protections;
• greater consistency.

Pressure From the Public

Immigrants, employers, universities, families, advocacy organizations, and state governments increasingly question whether the current structure remains sustainable.

What Happens If Nothing Changes?

The most likely scenario is continued growth of the existing system. Under this model:

• Congress appropriates additional funds;
• DOJ hires more judges;
• technology improves;
• court capacity expands.

This is essentially the approach used for the past twenty years. The challenge is that backlog growth has generally outpaced reform efforts. Without structural changes, the immigration courts may continue experiencing:

• longer delays;
• larger dockets;
• greater federal court intervention;
• increased administrative costs.

Why Federal Judges Are Becoming the Real Immigration Court of Last Resort

One of the most significant developments in modern immigration law has occurred outside EOIR. It has occurred in federal district courts. Across the country, independent federal judges increasingly review:

• detention decisions;
• bond hearing denials;
• expedited removal practices;
• due process violations;
• constitutional challenges.

Many underlying disputes begin in immigration court hearings, where the government is represented by a DHS attorney. Many of these cases arise because litigants believe the administrative system has failed to provide meaningful review. This trend should concern policymakers regardless of political ideology. A well-functioning administrative court system should reduce—not increase—the need for federal judicial intervention. Yet the opposite appears to be occurring.

The Irony of the Current System

Supporters of executive control often argue that immigration courts must remain within the executive branch because immigration enforcement is an executive function. Yet the practical result has been growing judicial involvement. Federal district judges now routinely decide issues involving:

• detention;
• bond eligibility;
• constitutional protections;
• removal procedures;
• agency authority.

In other words:

The less confidence litigants have in administrative adjudication, the more they seek review from independent judges.

The current structure may actually be producing more federal litigation, not less.

What an Article I Immigration Court Might Look Like

If Congress eventually acts, the most likely model is an Article I immigration court. The closest existing example is the U.S. Tax Court. Official source: https://www.ustaxcourt.gov A future immigration judiciary could include:

Independent Trial Courts

Current immigration judges would become judges of an independent court.

Independent Appellate Division

The BIA would be replaced or restructured as a true appellate tribunal.

Merit-Based Judicial Selection

Judicial appointments could be insulated from political changes.

Independent Budgeting

The court could receive direct congressional appropriations rather than operating through DOJ.

Greater Stability

Legal standards would become less vulnerable to rapid political shifts.

Is Reform Politically Realistic?

The answer is increasingly yes. Not immediately. But eventually. Why? Because nearly every major stakeholder now recognizes the problem. Different groups may disagree about solutions. But they increasingly agree that the current system faces serious challenges. Support for reform now comes from:

• former immigration judges;
• immigration scholars;
• bar associations;
• members of Congress;
• advocacy organizations;
• many practitioners.

The debate is gradually shifting from:

“Is there a problem?”

to

“What should replace the current system?”

That is often how major institutional reforms begin.

The Most Likely Timeline: 2026–2030

Scenario One: Incremental Reform

Probability: High Congress continues funding increases. Additional judges are hired. Technology improves. The current structure remains intact. This is the most likely short-term outcome.

Scenario Two: Partial Independence

Probability: Moderate Congress creates greater separation between DOJ leadership and immigration adjudication. Attorney General powers become more limited. Judicial protections increase. This could serve as a transition model

Scenario Three: Full Article I Immigration Court

Probability: Moderate to Long-Term Congress eventually creates an independent immigration judiciary. The transition would likely occur gradually over several years. This outcome appears increasingly plausible if backlog growth and federal litigation continue.

Scenario Four: Status Quo Failure

Probability: Significant Backlogs continue growing. Federal courts become increasingly involved. Public confidence continues declining. Congress eventually acts only after a larger institutional crisis develops. Historically, many major court reforms occur only after systems become unsustainable.

Why This Debate Matters to Every American

Some view immigration court reform as an issue affecting only immigrants. That is mistaken. The issue affects:

Taxpayers

Nearly $900 million annually is spent operating immigration courts.

Employers

Workforce planning depends upon predictable adjudication.

Families

Delays affect marriages, parents, children, and relatives.

Communities

Local economies are impacted by prolonged uncertainty.

Courts

Federal judges increasingly absorb disputes that administrative courts cannot fully resolve.

Democracy

The legitimacy of legal institutions depends upon public confidence.

The Founders Understood This Problem

The framers of the Constitution recognized a fundamental truth:

Courts cannot function effectively if they are perceived as extensions of political power.

That insight led to:

• separation of powers;
• judicial independence;
• lifetime tenure for federal judges.

The purpose was not to protect judges. The purpose was to protect the public. Immigration courts currently operate outside many of those safeguards. The debate over Article I courts is ultimately an effort to apply those same principles to one of the most consequential areas of modern law.

The Bottom Line

Immigration courts decide questions that profoundly affect human lives. They determine:

• who may remain in the United States;
• who may be deported;
• who receives asylum;
• who remains with family;
• who loses lawful status.

Yet unlike most courts in America, they remain housed within the executive branch. That structure was largely inherited from history. It was not carefully designed to address modern realities. Today, America faces:

• a backlog exceeding 3.2 million cases;
• escalating costs;
• increasing federal court intervention;
• growing concerns about consistency and independence.

The debate over independent immigration courts is no longer theoretical. It is rapidly becoming one of the most important institutional reform discussions in American law. Whether reform arrives in five years or twenty, the trend is unmistakable, especially because the vast majority of these cases are still decided within a system controlled by the executive branch:

The larger immigration adjudication becomes, the harder it becomes to justify a court system that remains under the control of the same executive branch responsible for enforcement.

The future of immigration courts may ultimately depend upon a simple principle that has guided democracies for centuries:

Courts work best when they are truly independent.

Frequently Asked Questions

Are immigration courts part of the federal judiciary? No. Immigration courts are part of the Executive Office for Immigration Review (EOIR), an agency within the U.S. Department of Justice. Official Source: https://www.justice.gov/eoir

---

Are immigration judges federal judges? Immigration judges are federal employees and adjudicators, but they are not Article III federal judges.

---

Who controls immigration courts? Immigration courts are overseen by EOIR, which operates under the Department of Justice and ultimately under the authority of the Attorney General.

---

Can the Attorney General change immigration law? The Attorney General cannot rewrite statutes enacted by Congress but can issue binding precedent decisions that immigration judges and the Board of Immigration Appeals generally must follow. Immigration judge decisions may be appealed to the Board of Immigration Appeals and, in some cases, to federal courts.

---

What is an Article I immigration court? An Article I immigration court would be an independent court established by Congress and separated from the Department of Justice.

---

Why do some people want independent immigration courts? Supporters argue that independent courts would improve:

• judicial independence;
• due process;
• consistency;
• public confidence;
• long-term efficiency.

---

How many immigration court cases are pending? According to TRAC, the backlog exceeds 3.2 million cases. https://tracreports.org/immigration/quickfacts/eoir.html

---

Would independent courts eliminate the backlog? No. However, supporters believe independent courts could improve efficiency, consistency, and long-term case management.

---

Has Congress proposed independent immigration courts? Yes. Several proposals, including versions of the Real Courts, Rule of Law Act, have sought to establish Article I immigration courts.

---

Why does judicial independence matter? Judicial independence helps ensure that decisions are based on law and facts rather than political pressures or enforcement priorities.

Resource Center

Government Resources

• EOIR: https://www.justice.gov/eoir
• Immigration Court Practice Manual: https://www.justice.gov/eoir/reference-materials/ic
• Board of Immigration Appeals: https://www.justice.gov/eoir/board-of-immigration-appeals
• Department of Justice Budget Documents: https://www.justice.gov/jmd

Congressional Resources

• Real Courts Rule of Law Act: https://lofgren.house.gov/media/press-releases/lofgren-leads-bill-create-independent-immigration-court-system

Data Resources

• TRAC Immigration Court Backlog: https://tracreports.org/immigration/quickfacts/eoir.html

Professional Organizations

• AILA Independent Court Resources: https://www.aila.org/library/policy-brief-america-needs-independent-fair-and-efficient-immigration-courts
• American Bar Association Immigration Court Reform: https://www.americanbar.org/groups/public_interest/immigration

HLG Immigration Court & Immigration Judge Resource Center

• Cleveland Immigration Court 2026: Complete Survival Guide
• Immigration Court in Cleveland, Ohio
• Deep Dive Into Trump’s War Against Immigration Courts
• Deportation Judges 2025: Immigration Court Crackdown and Due Process
• Trump Purge Immigration Judges and Their Polarizing Impact
• Trump Fires Immigration Judges Amid Growing Court Backlog
• Protecting Immigrants from Expedited Removal and Immigration Court Arrests
• 2025 BIA Bond Rulings and No-Bond Immigration Detention
• Implications of Vacatur of Yajure Hurtado
• Bond After Hurtado and Maldonado Bautista: 2026 Guide for ICE Detainees in Ohio
• Why Cleveland IJs Are Still Denying Bond After Bautista
• The Colossal Impact of the Bautista ICE Detention Ruling 2026
• ICE Detention in Ohio: How to File Habeas
• 10 Steps to Navigate ICE Detention: Youngstown ICE Detention Lawyer
• Immigration Bond in Ohio: What to Do in the First 72 Hours After an ICE Arrest

Need Help With Immigration Court, Detention, Bond, Habeas Corpus, or Deportation Defense?

The immigration court system is changing rapidly. New detention policies, expanding expedited removal authority, shifting BIA precedent, increasing ICE enforcement, and evolving federal court decisions—often reshaped by shifts in the administration’s agenda—have created unprecedented uncertainty for immigrants, families, employers, students, asylum seekers, and lawful permanent residents. Recent court fights have also shown how the trump administration used aggressive executive immigration measures that drew legal challenges. In many cases, officials justify prioritization decisions by citing homeland security concerns. Whether you are:

• facing removal proceedings in immigration court;
• detained by ICE and seeking release;
• denied a bond hearing;
• challenging prolonged immigration detention;
• considering a federal habeas corpus petition;
• appealing an immigration judge’s decision to the Board of Immigration Appeals;
• responding to a motion to terminate proceedings;
• concerned about expedited removal;
• seeking asylum or cancellation of removal;
• defending a green card, visa, or immigration benefit;
• preparing for a hearing before an immigration judge;

experienced legal representation can make a critical difference. For more than 30 years, Richard Herman and the attorneys at Herman Legal Group have represented immigrants nationwide in immigration court proceedings, detention matters, bond hearings, BIA appeals, federal court litigation, habeas corpus actions, and complex deportation defense cases. Our team closely monitors:

• immigration court developments;
• BIA precedent decisions;
• federal habeas corpus litigation;
• ICE detention policies;
• expedited removal practices;
• immigration judge procedures;
• federal court challenges affecting immigrants across the United States.

If you or a family member is facing immigration court, detention, or deportation issues, do not wait until options become limited.

Schedule a Consultation

Learn more about HLG’s immigration court and deportation defense services at Removal Defense, Immigration Detention, and Immigration Appeals. To discuss your situation with Richard Herman or an experienced Herman Legal Group attorney, call +1-216-696-6170 or schedule a consultation online at Herman Legal Group. The firm also helps clients coordinate filings, scheduling, and hearing logistics with court personnel. When your future in the United States is at stake, experienced guidance matters.    

The Immigration Equities Package for Adjustment of Status: How to Win Favorable Discretion in Cases After USCIS Memo PM-602-0199

A strong equities package should anticipate both travel and filing-timing risks. See our guides to I-485 denial, travel with a pending I-485, and filing Form I-485 under current visa-bulletin conditions.

A favorable-discretion package should be integrated into the complete marriage-based I-485 process.

Understanding Discretion — The Most Important Concept Most Green Card Applicants Never Think About

Quick Takeaway

Most adjustment of status applicants focus almost entirely on eligibility. They ask:

• Am I eligible for a green card?
• Is my priority date current?
• Do I qualify through marriage, family, employment, or another category?
• Can I file Form I-485?

Those questions are important. But after USCIS issued Policy Memorandum PM-602-0199, Adjustment of Status and Discretion, a different question has become increasingly important: Even if you qualify for a green card, why should USCIS exercise favorable discretion and approve your application? That question lies at the heart of what immigration lawyers call an Immigration Equities Package—a strategic collection of evidence demonstrating that an applicant deserves a favorable exercise of discretion. Understanding discretion is the foundation for understanding everything else in this article.  

Why This Topic Suddenly Matters

When USCIS issued PM-602-0199 on May 21, 2026, the immigration community reacted immediately. The memorandum repeatedly described adjustment of status as:

• a discretionary benefit;
• administrative grace;
• extraordinary relief;
• an alternative to the normal consular processing system.

For many immigration lawyers, employers, universities, hospitals, and applicants, the memo appeared to signal a dramatic shift in how adjustment cases might be adjudicated. Within days, immigration organizations, practitioners, and major media outlets began analyzing the implications. Some commentators feared USCIS intended to transform adjustment of status from a routine immigration benefit into a much more difficult form of relief. Others argued the agency was merely restating legal principles that have existed for decades. As concerns mounted, reports emerged that USCIS officials were attempting to clarify aspects of the policy and reassure stakeholders that adjustment of status remained available for qualified applicants. The result was what many practitioners now describe as the PM-602-0199 “shockwave” followed by a partial “walk-back.” Yet regardless of how the policy ultimately develops, one reality remains unchanged: Discretion is now at the center of the conversation.

The Difference Between Eligibility and Discretion

Many applicants assume that if they satisfy the legal requirements for adjustment of status, approval should follow automatically. Immigration law does not work that way. Eligibility and discretion are different concepts.

Eligibility

Eligibility asks:

• Is there an approved immigrant petition?
• Is a visa available?
• Was the applicant inspected and admitted or paroled?
• Does the applicant qualify under INA §245?
• Is the applicant admissible?

These are threshold questions. An applicant who fails them generally cannot obtain adjustment.

Discretion

Discretion asks something different: Assuming the applicant is legally eligible, should USCIS approve the application? This is where positive and negative factors may come into play. An applicant may satisfy every statutory requirement and still face questions concerning:

• immigration history;
• compliance with prior visa conditions;
• criminal history;
• honesty and credibility;
• public safety concerns;
• humanitarian factors;
• family circumstances;
• overall equities.

Discretion is not about whether someone qualifies. It is about whether approval is warranted.

The Single Most Important Word in the Adjustment of Status Statute

The legal foundation of discretion begins with one word found in INA §245. Congress did not provide that adjustment applications “shall” be granted. Instead, Congress provided that the Attorney General (now USCIS and DHS) “may” adjust the status of an eligible applicant. That distinction is significant. Throughout American law, courts generally interpret the word “may” as granting decision-makers discretion. The concept has been recognized repeatedly by immigration courts, federal courts, the Board of Immigration Appeals, and USCIS itself. This is why adjustment of status has always been considered a discretionary benefit rather than an entitlement. The idea did not originate with PM-602-0199. The memorandum simply brought that reality back to the forefront. It also included no grandfathering provision, so the change could affect already pending cases.

Why Adjustment of Status Is Different From Consular Processing

One of the themes emphasized throughout PM-602-0199 is that adjustment of status allows certain applicants to obtain permanent residence without leaving the United States. Historically, immigrant visas were obtained through a U.S. consulate abroad. Adjustment of status created a mechanism allowing qualifying applicants already present in the United States to complete the process domestically. For decades, adjustment became the preferred route for many applicants because it generally offered:

• continuity of employment;
• family stability;
• reduced travel risks;
• procedural efficiency;
• greater predictability.

The memorandum’s repeated references to adjustment as “extraordinary relief” triggered concern because many practitioners interpreted that language as suggesting applicants should be required to justify why they should be permitted to adjust in the United States rather than complete processing abroad. That interpretation became one of the central controversies surrounding the memo.

Why the Immigration Bar Reacted So Strongly

The concern was not simply academic. Adjustment of status is the backbone of many immigration categories. Every year, hundreds of thousands of people rely upon adjustment, including:

• spouses of U.S. citizens;
• parents of U.S. citizens;
• employment-based professionals;
• physicians;
• researchers;
• international students;
• entrepreneurs;
• refugees and asylees;
• humanitarian applicants.

Employers build hiring strategies around adjustment. Hospitals recruit physicians based on adjustment pathways. Universities depend on adjustment options for researchers and faculty. Families often structure major life decisions around adjustment eligibility. Any suggestion that USCIS intended to fundamentally alter adjustment adjudications was bound to create significant concern. That is precisely what happened.

The Subsequent Clarifications

In the days following publication of the memorandum, reports emerged that USCIS officials were providing additional context regarding the policy. Many practitioners interpreted those statements as an effort to reassure stakeholders that the agency was not eliminating adjustment of status or requiring mass consular processing. The practical reality is that the U.S. immigration system depends heavily on adjustment adjudications. A dramatic reduction in adjustment approvals would create significant consequences for employers, families, universities, healthcare systems, and the broader economy. As a result, many observers concluded that the initial language of the memorandum may have been broader than the agency ultimately intended to implement. Whether one views those developments as a clarification or a walk-back, the episode revealed how sensitive adjustment policy has become. The debate centered on a USCIS policy memo that provided internal guidance rather than changing the statute itself.  

What Applicants Should Learn From the PM-602-0199 Debate

Many applicants initially focused on the wrong question. The question is not: Is adjustment of status disappearing? The answer is almost certainly no. The more important question is:

What evidence can I provide to make my case stronger if USCIS is paying greater attention to discretion?

That question leads directly to the concept of an Immigration Equities Package. The strongest applicants do not simply prove eligibility. They demonstrate why approval serves:

• family unity;
• humanitarian interests;
• economic growth;
• community stability;
• public benefit;
• long-term national interests.

In other words, they build a record showing why USCIS should say yes. You are investing a lot of money and time in the process. The government filing fee for Adjustment of Status is approximately $1,440. Let’s do it right!

Richard Herman’s Observation

For many years, most adjustment cases focused primarily on eligibility. The future may look different. Whether PM-602-0199 ultimately results in major policy changes or merely heightened scrutiny, applicants should expect USCIS officers to pay closer attention to the overall story behind a case. Two applicants may have identical eligibility. Yet one may present:

• extensive community service;
• long-term tax compliance;
• exceptional employment history;
• strong family ties;
• compelling humanitarian factors;
• evidence of rehabilitation;
• substantial contributions to the United States.

The other may present little beyond the required forms. If discretion becomes increasingly important, those differences may matter. That is why the concept of an Immigration Equities Package is likely to become one of the most important immigration strategies of the next several years. In the next section, we will examine the legal framework behind discretionary decision-making, including INA §245, the USCIS Policy Manual, Matter of Arai, Matter of Marin, Matter of Mendez-Moralez, Patel v. Garland, and the long history of how immigration adjudicators weigh favorable and adverse factors.

The Legal Foundation of Discretion

Where USCIS Gets the Power to Say “Yes” — or “No”

Before discussing Immigration Equities Packages, positive factors, or the 100-document checklist, it is important to understand a fundamental reality: USCIS did not create discretionary authority through PM-602-0199. The authority to exercise discretion has existed for decades. The memo did not invent discretion. Rather, it reminded immigration officers that discretion has always been part of adjustment adjudications. To understand what USCIS may do in the future, applicants must first understand where discretion comes from and how courts, immigration judges, and the Board of Immigration Appeals have historically analyzed favorable and adverse factors.

The Statutory Foundation: INA §245

Adjustment of status is governed by INA §245 and other applicable federal law. The critical language appears near the beginning of the statute: “The status of an alien who was inspected and admitted or paroled into the United States … may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe…” The most important word in that sentence is:

“May”

Congress did not say USCIS shall adjust status. Congress did not say USCIS must adjust status. Congress said USCIS may adjust status. That single word creates discretionary authority. Federal courts have repeatedly recognized that adjustment of status is not an entitlement. Even when an applicant satisfies all statutory requirements, approval is not automatic. This principle has existed for generations. PM-602-0199 merely brought renewed attention to it.

The USCIS Policy Manual Already Recognized Discretion

Long before PM-602-0199, USCIS’s own guidance described adjustment as a discretionary benefit. The USCIS Policy Manual, Volume 7, which governs adjustment of status adjudications, states that officers must determine whether applicants merit a favorable exercise of discretion. The Policy Manual has long instructed officers to evaluate:

• positive factors;
• adverse factors;
• humanitarian considerations;
• public-interest considerations;
• overall circumstances.

In other words: The concept of weighing equities did not begin in 2026. It has always existed. What changed in 2026 was the degree of emphasis USCIS placed upon that authority.

Matter of Arai: The Foundation of Favorable Discretion

No discussion of adjustment discretion is complete without examining Matter of Arai, 13 I&N Dec. 494 (BIA 1970). Many immigration lawyers consider Arai the foundational adjustment-of-status discretion case. The Board recognized that adjustment applicants may present favorable factors that support approval even where adverse factors exist. Arai is important because it established a framework that still influences immigration adjudications today:

Favorable Factors Matter

The Board emphasized that officers should consider positive equities.

Adverse Factors Matter

Negative factors are not ignored.

The Entire Record Matters

Cases should be evaluated holistically rather than mechanically. This basic balancing approach appears repeatedly throughout later immigration cases. Arai remains highly relevant because it illustrates that discretion involves more than checking statutory boxes. It involves evaluating the person behind the application.

Matter of Marin: The Balancing Test

Another foundational decision is Matter of Marin, 16 I&N Dec. 581 (BIA 1978). Although Marin involved suspension of deportation rather than adjustment of status, its balancing framework became one of the most influential concepts in immigration law. USCIS officers consider all relevant factors on a case-by-case basis. The Board explained that decision-makers should weigh:

Favorable Factors

against

Adverse Factors

Examples of favorable factors identified in Marin include:

• family ties in the United States;
• long residence;
• hardship;
• employment history;
• property ownership;
• community service;
• rehabilitation;
• good moral character.

Examples of adverse factors include:

• criminal history;
• immigration violations;
• fraud;
• repeated misconduct;
• public-safety concerns.

The balancing methodology from Marin eventually influenced discretionary analysis throughout immigration law. Even though adjustment cases differ from deportation cases, the underlying principle remains highly relevant: The stronger the positive equities, the more likely they may offset adverse considerations.

Matter of Mendez-Moralez: The Modern Equities Framework

Perhaps the most important discretionary decision for understanding Immigration Equities Packages is Matter of Mendez-Moralez, 21 I&N Dec. 296 (BIA 1996). The case involved a waiver application, but its discussion of discretion has become influential far beyond that context. Mendez-Moralez identified many factors immigration adjudicators traditionally consider:

Positive Factors

• family ties;
• residence in the United States;
• hardship to family members;
• employment history;
• community contributions;
• rehabilitation;
• good moral character.

Negative Factors

• criminal conduct;
• immigration violations;
• dishonesty;
• other adverse behavior.

The case emphasized individualized review. No single factor automatically controls. Instead, adjudicators examine the entire record. This concept lies at the heart of what an Immigration Equities Package seeks to accomplish.

Patel v. Garland: Why Discretion Matters More Than Ever

The modern landscape cannot be understood without discussing Patel v. Garland, 596 U.S. 328 (2022). Patel was one of the most important immigration decisions issued by the United States Supreme Court in recent years. The Court held that federal courts generally lack jurisdiction to review many factual determinations underlying discretionary adjustment decisions. The practical consequence was significant. Historically, applicants often viewed federal court review as an important safeguard. Patel narrowed that pathway. When adjustment policy is challenged in court, possible outcomes can still remain uncertain. Many immigration lawyers interpreted the decision as increasing the practical importance of the USCIS adjudication itself. If courts have less ability to second-guess discretionary determinations, building the strongest possible administrative record becomes even more important. That is one reason Immigration Equities Packages may become increasingly valuable.

The Difference Between Eligibility Factors and Equities

Many applicants confuse evidence proving eligibility with evidence supporting discretion. They are not the same.

Eligibility Evidence

Examples include:

• approved I-130 petitions;
• approved I-140 petitions;
• birth certificates;
• marriage certificates;
• admission records;
• visa documentation.

These documents establish legal qualification.

Equities Evidence

Examples include:

• community service;
• tax compliance;
• rehabilitation;
• employment achievements;
• family hardship;
• caregiving responsibilities;
• military service;
• charitable activities.

These documents help answer a different question: Why should USCIS approve this case? Both categories matter. But PM-602-0199 has increased attention on the second category.

How Officers Actually Weigh Cases

One misconception is that USCIS officers use a mathematical formula. They do not. There is no point system. No checklist automatically guarantees approval. Instead, officers typically evaluate the overall record. They ask questions such as:

• What positive factors exist?
• What negative factors exist?
• How serious are the adverse issues?
• How extensive are the positive equities?
• Has rehabilitation occurred?
• Would approval promote family unity?
• Would approval advance humanitarian goals?
• Would approval benefit the public interest?

These are inherently discretionary judgments. That is why two applicants with similar legal eligibility may experience very different outcomes.

What Counts as a Strong Positive Equity in a Green Card Application?

Although every case is unique, certain factors repeatedly appear throughout immigration law. Common documentation includes evidence of family ties, community involvement, and employment history. Among the strongest are:

Family Unity

Particularly involving:

• U.S. citizen spouses;
• U.S. citizen children;
• elderly parents;
• dependent family members.

Long-Term Residence

Years of productive residence often carry significant weight.

Employment and Tax Compliance

Consistent work history and tax compliance demonstrate responsibility and contribution. Documentation of U.S. tax compliance strengthens an equities package.

Community Involvement

Volunteer work, religious participation, and civic engagement often strengthen discretionary arguments. Community membership can support positive factors in an adjustment application.

Rehabilitation

Where adverse factors exist, evidence of rehabilitation may become one of the most important components of the case.

Humanitarian Considerations

Medical issues, disabilities, caregiving responsibilities, and country-condition concerns can all influence discretionary analysis.

Why PM-602-0199 Makes These Cases Newly Important

For decades, many practitioners discussed Matter of Arai, Matter of Marin, and Matter of Mendez-Moralez primarily in removal cases, waiver cases, and complex discretionary matters. PM-602-0199 changed that conversation. Suddenly, thousands of adjustment applicants began asking:

What positive equities should I be presenting?

That question is exactly the right one. Because whether USCIS ultimately applies the memo aggressively or moderately, the safest strategy remains the same: Build the strongest record possible. Do not merely prove eligibility. Demonstrate why approval serves the interests of:

• family unity;
• economic stability;
• humanitarian fairness;
• community welfare;
• the United States as a whole.

That is the purpose of an Immigration Equities Package. And it is why the next section of this guide examines what PM-602-0199 actually changed, what the media reported, what USCIS appears to have clarified afterward, and why the “walk-back” may be just as important as the memo itself.

PM-602-0199, the Backlash, and the “Walk-Back”

What Actually Happened — And What Applicants Should Learn From It

No immigration policy memorandum in 2026 generated more confusion, anxiety, debate, and media attention than USCIS Policy Memorandum PM-602-0199. Within days of its publication, immigration lawyers, employers, universities, hospitals, advocacy organizations, and applicants were asking the same question: Did USCIS just make adjustment of status dramatically harder? The answer is more complicated than many headlines suggested. To understand why, it is important to examine what the memo actually said, why it triggered such a strong reaction, how USCIS responded to the criticism, and what practical lessons applicants should take away from the controversy.

The Memo That Shook the Immigration Bar

On May 21, 2026, USCIS released Policy Memorandum PM-602-0199, Adjustment of Status and Discretion. At first glance, the memo appeared relatively short. Yet several phrases immediately caught the attention of immigration practitioners. USCIS repeatedly described adjustment of status as:

• a discretionary benefit;
• administrative grace;
• extraordinary relief;
• an exception to the normal immigrant visa process.

While those concepts have long existed in immigration law, the tone and emphasis of the memorandum raised concerns that USCIS intended to fundamentally alter how adjustment cases would be adjudicated. The memo did not include a grandfathering provision for already filed I-485 cases, which heightened concern about any new adjustment approach affecting pending applications. Many attorneys believed the memo went far beyond a simple restatement of existing law. Instead, it appeared to signal a philosophical shift toward more restrictive adjudications.

Why the Phrase “Extraordinary Relief” Triggered Alarm

Perhaps no phrase generated more controversy than USCIS’s description of adjustment of status as an “extraordinary form” of relief. For decades, adjustment of status has functioned as one of the primary pathways to lawful permanent residence and a central part of the domestic green card process for applicants already in the United States. Every year, hundreds of thousands of applicants use adjustment procedures to obtain green cards while remaining in the United States. These applicants include:

• spouses of U.S. citizens;
• parents of U.S. citizens;
• employment-based professionals;
• physicians;
• researchers;
• international students;
• entrepreneurs;
• refugees and asylees.

The concern among practitioners was straightforward. If adjustment truly became “extraordinary relief,” would applicants now be expected to justify why they deserved adjustment rather than immigrant visa processing at a U.S. consulate abroad? Would officers begin denying cases that historically would have been approved? Would lawful pathways become less predictable? Those questions quickly spread throughout the immigration community.

AILA and the Immigration Bar Respond

The immigration bar reacted almost immediately. The American Immigration Lawyers Association (AILA) criticized portions of the memorandum and warned that its language could create uncertainty for both applicants and adjudicators. Many practitioners argued that Congress intended adjustment of status to function as a normal statutory mechanism rather than a rare exception. Others expressed concern that officers could interpret the memorandum inconsistently across field offices. The fear was not merely theoretical. Immigration lawyers reported receiving questions from clients who worried that:

• pending adjustment applications or already pending cases might be denied because USCIS has not provided a grandfathering provision for pending cases;
• adjustment cases might be converted into consular processing cases;
• family-based green card applications could become more difficult;
• employment-based adjustment strategies might no longer be reliable.

For law firms across the country, the volume of inquiries increased almost immediately.

Employers, Universities, and Hospitals Became Concerned

The reaction extended well beyond immigration attorneys. Major sectors of the American economy depend heavily on adjustment of status. Hospitals use adjustment pathways to retain physicians. Universities depend on adjustment options for professors, researchers, and graduate students. Technology companies rely upon adjustment processing for highly skilled workers. Businesses use adjustment to retain long-term employees and avoid disruptions caused by international travel and consular delays. If adjustment became substantially more difficult, the consequences would extend far beyond individual applicants. Employers understood this immediately. That is one reason the policy quickly attracted national attention.

National Media Coverage

The controversy surrounding PM-602-0199 soon moved beyond legal circles. Major media organizations began reporting on the policy and its potential implications. Coverage highlighted concerns that USCIS might be attempting to discourage adjustment of status and encourage more applicants to pursue immigrant visa processing abroad. Several reports quoted immigration lawyers who argued that the memorandum represented one of the most consequential adjustment-of-status developments in years. Others emphasized the uncertainty surrounding implementation and questioned whether USCIS intended to apply the policy broadly or narrowly. The resulting coverage brought an issue that might otherwise have remained confined to immigration practitioners into the national spotlight.

The Practical Reality: USCIS Could Not Simply Eliminate Adjustment

As the debate intensified, a practical problem became increasingly obvious. The American immigration system depends heavily on adjustment of status. A dramatic reduction in adjustment approvals would affect:

• family-based immigration;
• employment-based immigration;
• physician recruitment;
• higher education;
• scientific research;
• business operations;
• workforce planning.

Congress has repeatedly preserved adjustment as a central component of the immigration system. Adjustment is not a loophole. Adjustment is not an exception created by agency policy. Adjustment is a statutory benefit enacted by Congress. For that reason, many observers believed USCIS would eventually need to clarify how the memorandum would be applied.

The “Walk-Back”

Within days of the memorandum’s publication, reports began circulating that USCIS officials were providing additional explanations regarding the policy. Practitioners across the country reported hearing that:

• adjustment remained available;
• officers would continue conducting individualized reviews;
• the memorandum did not require mass consular processing;
• applicants would still be reviewed individually under existing adjustment of status policy.

Some field officers reportedly acknowledged confusion created by the memorandum’s initial language. Other reports suggested that internal discussions were underway regarding implementation. Whether one describes these developments as a clarification, modification, recalibration, or walk-back, the practical effect was similar: The widespread fear that adjustment itself was disappearing began to subside.

Why the Walk-Back Matters More Than Most People Realize

Many observers focused on the controversy itself. The more important issue may be what happened afterward. The walk-back effectively confirmed several important realities.

Reality #1: Adjustment Is Not Going Away

Adjustment remains one of the central pillars of the immigration system. Congress created it. Employers depend on it. Families depend on it. USCIS processes hundreds of thousands of adjustment applications every year. Nothing that occurred after PM-602-0199 suggests adjustment is disappearing.

Reality #2: Discretion Is Here to Stay

Although fears of mass denials appear overstated, the underlying legal principle remains unchanged. Adjustment is discretionary. The agency has repeatedly emphasized that point. The walk-back did not eliminate discretion. If anything, it reinforced the importance of discretionary analysis.

Reality #3: Officers Have Been Reminded to Document Discretion

Perhaps the most significant long-term consequence of PM-602-0199 is that officers have now received an unmistakable reminder regarding discretionary authority. That reminder may influence:

• interview questioning;
• RFE issuance;
• NOID issuance;
• case documentation;
• written decisions.

Even if approval rates remain relatively stable, discretionary reasoning may receive greater attention than in previous years.

What Attorneys Across the Country Are Reporting

Although implementation continues to evolve, many immigration lawyers report several emerging trends. These include:

More Questions About Immigration History

Officers appear increasingly interested in understanding prior status compliance, travel history, previous interactions with immigration agencies, and verifying the applicant’s immigration status.

Greater Focus on Credibility

Consistency across forms, interviews, supporting evidence, and prior filings appears increasingly important.

More Interest in Humanitarian Factors

Family circumstances, caregiving responsibilities, medical conditions, and hardship evidence may be receiving greater attention.

Increased Discussion of Positive Equities

Many practitioners have reported spending more time proactively presenting favorable discretionary evidence. Whether this trend continues remains to be seen. However, it aligns with the broader emphasis reflected in PM-602-0199.

What Applicants Should Do Right Now

The lesson from PM-602-0199 is not panic. The lesson is preparation. Applicants should avoid two mistakes.

Mistake #1: Assume the Memo Changes Nothing

Ignoring the memorandum entirely would be unwise. USCIS issued it for a reason. Officers have been instructed to think about discretion. Applicants should do the same.

Mistake #2: Assume Every Case Will Be Denied

The opposite reaction is equally misguided. The subsequent clarifications strongly suggest that adjustment remains available to qualified applicants. Most applicants should not assume their cases are doomed.

The Better Strategy

The better strategy is simple: Build the strongest case possible. That means:

• proving eligibility;
• documenting admissibility;
• preparing for interviews;
• anticipating concerns;
• presenting favorable equities that require careful preparation as structured narrative evidence, not just a stack of loose documents.

The applicants best positioned to succeed under any discretionary framework are those who proactively demonstrate why approval serves the interests of:

• family unity;
• economic contribution;
• humanitarian fairness;
• community stability;
• public benefit.

That is precisely why Immigration Equities Packages have become such an important topic.

Richard Herman’s Prediction

The long-term significance of PM-602-0199 may not be increased denials. It may be increased documentation. In the years ahead, successful adjustment cases are likely to look more sophisticated. Applicants who merely submit the minimum required forms may find themselves at a disadvantage compared to applicants who present a complete narrative supported by extensive evidence of positive equities.

The future of adjustment practice may involve less focus on checking boxes and more focus on telling a compelling story. That story is built through evidence. And that evidence is what we call an Immigration Equities Package.

In the next section, we will examine what USCIS officers are most likely looking for when evaluating favorable discretion and identify the specific categories of evidence that carry the greatest weight in adjustment adjudications. It will answer the practical question that immigrants actually have:

“What positive factors are USCIS officers likely looking for right now?”

What USCIS Officers Are Most Likely Looking For Now

Understanding the Positive Equities That Can Strengthen an Adjustment of Status Case

If the previous sections of this article established the legal framework behind discretion, this section answers the practical question every applicant is asking:

What does favorable discretion actually look like in a discretionary, multi-step status process?

The truth is that no USCIS officer receives a secret checklist. There is no publicly available point system. There is no formula assigning ten points for community service, twenty points for employment history, and thirty points for family ties. Discretion does not work that way. Yet after reviewing the USCIS Policy Manual, decades of immigration case law, including Matter of Arai, Matter of Marin, and Matter of Mendez-Moralez, as well as the themes emphasized in PM-602-0199, clear patterns emerge.

• Certain equities repeatedly appear.
• Certain facts consistently help applicants.
• Certain evidence tells a compelling story.

The strongest cases are often those that answer a simple question: Why is approving this application the right decision?

The Most Important Shift: From Eligibility to Narrative

Historically, many adjustment applicants treated the filing as a status application and focused almost exclusively on proving eligibility, rather than building the discretionary narrative that explains why approval is warranted. They submitted:

• Form I-485;
• supporting civil documents;
• medical examination;
• financial sponsorship forms;
• immigration records.

Those documents remain essential. However, they typically answer only one question: Can this person qualify? They often do not answer:

Why should USCIS approve this person?

That second question is where equities become important. The strongest discretionary cases create a coherent narrative. The evidence demonstrates:

• who the applicant is;
• what the applicant has contributed;
• why family members depend upon the applicant;
• why approval advances humanitarian interests;
• why approval benefits the United States.

Equity #1: Family Unity

Historically, family unity has been among the strongest positive equities in immigration law. This should not be surprising. Family reunification has long been one of the primary goals of the Immigration and Nationality Act. When officers evaluate discretionary factors, they frequently consider:

• U.S. citizen spouses;
• lawful permanent resident spouses;
• U.S. citizen children;
• dependent children;
• elderly parents;
• disabled family members;
• caregiving responsibilities.

The more significant the family impact, the stronger the equity may become.

Why Family Evidence Matters

Many applicants submit only basic proof of the relationship. For example:

• marriage certificate;
• birth certificate;
• adoption decree.

Those documents establish eligibility.

But they rarely explain the human impact of the case.

An effective discretionary presentation often goes further. It may demonstrate:

• emotional dependency;
• financial dependency;
• caregiving obligations;
• educational needs of children;
• medical needs of family members;
• family stability concerns.

Officers evaluating discretion frequently respond to evidence that shows real-world consequences rather than merely legal relationships.

Equity #2: Long-Term Residence in the United States

Length of residence has appeared repeatedly in immigration decisions involving discretion. The reasoning is straightforward. The longer someone has lived productively in the United States, the stronger the argument that removal or denial would disrupt established ties. Long residence may reflect:

• community integration;
• cultural assimilation;
• employment stability;
• family development;
• educational achievement.

For some applicants, years of lawful residence may become one of the strongest favorable factors in the case.

Equity #3: Employment and Economic Contributions

One of the most powerful but often underutilized equities involves economic contribution. USCIS officers frequently encounter applicants who:

• pay taxes;
• support families;
• employ workers;
• provide professional services;
• contribute to local economies.

These contributions matter. Particularly strong examples include:

Healthcare Workers

Physicians. Dentists. Nurses. Therapists. Healthcare shortages throughout the United States make these equities especially compelling.

Researchers and Scientists

Researchers often contribute innovations that benefit public health, technology, education, and national competitiveness.

Entrepreneurs

Business owners may create jobs and stimulate local economic activity.

Long-Term Employees

Applicants with substantial work histories often demonstrate reliability, stability, and integration into American society.

Equity #4: Tax Compliance

One of the simplest yet most persuasive equities is tax compliance. Tax records often demonstrate:

• responsibility;
• honesty;
• economic contribution;
• respect for legal obligations.

Applicants who have consistently filed taxes frequently possess evidence that strengthens both credibility and discretionary arguments. Conversely, unresolved tax issues can create unnecessary complications.

Equity #5: Education and Future Potential

Education frequently receives less attention than it deserves. Yet educational achievements often provide compelling evidence of future contributions. Particularly strong factors include:

• college degrees;
• graduate degrees;
• professional licenses;
• research publications;
• certifications;
• scholarships;
• academic awards.

International students may have especially strong equities when they demonstrate:

• academic excellence;
• community involvement;
• future workforce contributions.

This is one reason many F-1 students may benefit from proactive discretionary submissions.

Equity #6: Community Involvement

Some of the most persuasive evidence in an immigration file never appears on government forms. Community involvement may include:

• volunteer work;
• religious service;
• nonprofit participation;
• youth mentorship;
• coaching;
• civic engagement.

Such evidence demonstrates something important: The applicant is invested in the community beyond personal gain. That message can be extremely powerful.

Equity #7: Character and Reputation

Many officers seek evidence answering a simple question: What kind of person is this applicant? Character evidence may come from:

• employers;
• teachers;
• clergy;
• community leaders;
• coworkers;
• neighbors.

Strong character evidence is often specific. The best letters do not simply say: “He is a good person.” Instead, they describe:

• actions;
• achievements;
• responsibilities;
• examples of integrity.

Specific examples are more persuasive than general praise.

Equity #8: Rehabilitation

For applicants with adverse factors, rehabilitation may become the single most important equity in the case. This issue often arises when applicants have:

• arrests;
• convictions;
• substance abuse histories;
• prior misconduct;
• immigration violations.

USCIS officers frequently focus on whether rehabilitation has occurred. Relevant evidence may include:

• counseling records;
• treatment completion;
• educational achievements;
• stable employment;
• community service;
• character references.

The passage of time also matters. A mistake from twenty years ago may carry less weight than a recent incident.

Equity #9: Humanitarian Considerations

Humanitarian factors have always played an important role in discretionary adjudications. Examples include:

• serious illness;
• disability;
• caregiving obligations;
• mental health concerns;
• special-needs children;
• country-condition concerns.

These factors may not independently determine a case. However, they often become important components of the overall discretionary analysis.

Equity #10: Service to Others

Among the most powerful equities are those demonstrating service. Examples include:

• military service;
• healthcare service;
• teaching;
• emergency response work;
• nonprofit leadership;
• community advocacy.

Such evidence often helps officers understand the broader impact of the applicant’s presence in the United States.

The Hidden Equity Most Applicants Ignore

After decades of immigration practice, one recurring problem appears in many cases.

Applicants assume officers will connect the dots themselves.

Often they do not. The strongest evidence in the world may lose value if nobody explains why it matters. That is why many successful cases include:

An Equities Memorandum

An effective memorandum:

• identifies positive factors;
• addresses negative factors;
• explains context;
• cites legal authority;
• organizes supporting evidence;
• tells the applicant’s story.

Think of the memorandum as the bridge between the evidence and the decision-maker. Without that bridge, even strong evidence may be overlooked.

What Officers Are Really Evaluating

Although every officer is different, most discretionary reviews ultimately focus on several questions: Is this person contributing to society?

• Is this person supporting family members?
• Has this person demonstrated responsibility?
• If mistakes occurred, has rehabilitation taken place?
• Would approval promote family unity?
• Would approval serve humanitarian interests?
• Would approval benefit the United States?

The strongest adjustment cases answer all of those questions before USCIS ever asks them.

Richard Herman’s Observation

One of the most significant lessons from the PM-602-0199 debate is that applicants should stop thinking about adjustment solely as a paperwork exercise. The strongest cases are not merely legally sufficient.

• They are persuasive.
• They tell a story.
• They demonstrate value.
• They show contribution.
• They establish credibility.
• They explain hardship.
• They humanize the applicant.

Most importantly, they make it easier for a USCIS officer to conclude:

“This is a case in which favorable discretion should be exercised.”

That is the goal of every Immigration Equities Package. In the next section, we will build the complete Immigration Equities Package and identify the 100 documents that can help applicants present the strongest possible discretionary record under PM-602-0199.

The Immigration Equities Package: 100 Documents That Can Help Win Favorable Discretion Under PM-602-0199

The Ultimate Adjustment of Status Evidence Checklist

If the previous sections of this article explained why discretion matters, this section explains how to prove favorable discretion. Many applicants make a critical mistake. They assume USCIS will automatically understand the significance of their life story. They assume officers will infer:

• family hardship;
• economic contributions;
• community involvement;
• rehabilitation;
• future potential.

Often they do not. Immigration officers are reviewing files, forms, records, and evidence. Their understanding of your case depends largely on what is documented. An immigration equities package should be submitted to USCIS for adjustment of status. The purpose of an Immigration Equities Package is simple: Build a persuasive record that demonstrates why favorable discretion should be exercised. Not every document below will apply to every applicant. Most applicants will use only a portion of this checklist. The goal is not quantity. The goal is relevance. The strongest packages are carefully curated and strategically organized.

Category 1: Family Unity and Family Ties

Documents 1–20

Family unity has long been recognized as one of the most important positive equities in immigration law. The USCIS Policy Manual, Matter of Arai, and numerous discretionary cases emphasize the importance of family relationships.

Core Relationship Documents

1. Marriage Certificate

2. Children’s Birth Certificates

3. Stepchild Birth Certificates

4. Adoption Decrees

5. Guardianship Orders

Evidence of Family Integration

6. Family Photographs Over Time

7. Holiday and Family Event Records

8. Family Travel Records

9. School Records Showing Parent Involvement

10. Emergency Contact Records

Family Dependency Evidence

11. Evidence of Childcare Responsibilities

12. Evidence of Transportation Responsibilities

13. Evidence of Elder Care Responsibilities

14. Evidence of Financial Support to Family Members

15. Health Insurance Coverage for Family Members

Family Affidavits

16. Spouse Declaration

17. Child Declaration

18. Parent Declaration

19. Sibling Declaration

20. Extended Family Support Letters

Practice Tip

Do not simply prove the relationship exists. Explain why the relationship matters. A marriage certificate establishes a marriage. A detailed affidavit explains:

• emotional dependency;
• financial dependency;
• caregiving responsibilities;
• family stability.

The second document is often far more powerful.

Category 2: Hardship and Humanitarian Considerations

Documents 21–35

One of the most persuasive categories of evidence involves hardship and humanitarian concerns. Evidence of extreme hardship is critical when adjustment of status is at stake.

Medical Evidence

21. Physician Letters

22. Specialist Reports

23. Hospital Records

24. Disability Documentation

25. Medication Records

Mental Health Evidence

26. Psychological Evaluations

27. Psychiatric Evaluations

28. Counseling Records

29. Trauma Assessments

30. Mental Health Treatment Plans

Caregiving Evidence

31. Evidence Applicant Is Primary Caregiver

32. Home Health Documentation

33. Special Needs Child Documentation

34. Elder Care Documentation

35. Caregiver Affidavits

Why This Evidence Matters

Many adjustment cases are not merely immigration cases. They are family stability cases. They are healthcare cases. They are caregiving cases. The stronger the evidence of dependency, the stronger the humanitarian equity.

Category 3: Employment and Economic Contributions

Documents 36–50

Economic contribution is frequently underestimated. Many applicants contribute enormously to their communities and local economies.

Employment Records

36. Employment Verification Letter

37. Promotion Records

38. Performance Reviews

39. Professional Awards

40. Letters from Supervisors

Income and Tax Records

41. IRS Tax Transcripts

42. W-2 Forms

43. 1099 Forms

44. Payroll Records

45. State Tax Returns

Business and Entrepreneurship

46. Articles of Incorporation

47. Business Licenses

48. Employee Rosters

49. Payroll Summaries

50. Economic Impact Statements

High-Value Cases

Particularly compelling evidence often comes from:

• physicians;
• nurses;
• dentists;
• healthcare workers;
• researchers;
• professors;
• engineers;
• entrepreneurs;
• business owners.

These applicants frequently possess strong public-benefit equities.

Category 4: Education and Future Contributions

Documents 51–60

One of the most overlooked discretionary factors is future potential.

Academic Records

51. High School Diploma

52. College Degree

53. Graduate Degree

54. Academic Transcript

55. Professional Certification

Achievement Records

56. Scholarships

57. Academic Awards

58. Research Publications

59. Conference Presentations

60. Faculty Recommendation Letters

Why Students Should Pay Attention

F-1 students often assume they lack equities because they are young. In reality, even a temporary visa holder such as an F-1 student may have strong equities through academics, leadership, and future contributions:

• academic excellence;
• leadership;
• research contributions;
• community service;
• future workforce potential.

Those factors can be highly persuasive.

Category 5: Community Service and Civic Engagement

Documents 61–75

One of the strongest indicators of integration is community involvement.

Volunteer Service

61. Volunteer Logs

62. Nonprofit Service Records

63. Food Bank Service Records

64. Community Center Service Records

65. Youth Mentoring Records

Religious and Civic Participation

66. Church Leadership Records

67. Synagogue Participation Records

68. Mosque Participation Records

69. Faith-Based Volunteer Documentation

70. Civic Organization Memberships

Community Recognition

71. Community Awards

72. Certificates of Appreciation

73. Local Media Coverage

74. Letters from Community Leaders

75. Letters from Clergy

What Makes Community Evidence Persuasive?

The strongest evidence demonstrates consistent involvement over time. One volunteer event is good. Years of service are better.

Category 6: Character and Rehabilitation

Documents 76–90

Applicants with adverse factors should pay particular attention to this section. The concepts discussed in Matter of Marin and Matter of Mendez-Moralez repeatedly emphasize rehabilitation.

Character Evidence

76. Employer Character Letter

77. Coworker Character Letter

78. Teacher Recommendation

79. Clergy Letter

80. Community Leader Letter

Rehabilitation Evidence

81. Counseling Completion Certificates

82. Substance Abuse Treatment Completion Records

83. Anger Management Completion Certificates

84. Probation Completion Records

85. Community Service Completion Records

Evidence of Growth

86. Educational Achievements After Incident

87. Employment Success After Incident

88. Volunteer Work After Incident

89. Family Responsibility Evidence

90. Psychological Rehabilitation Evaluation

Important Principle

USCIS often focuses less on the existence of a past mistake and more on what happened afterward. Rehabilitation can become one of the strongest equities in a case.

Category 7: Exceptional and Extraordinary Equities

Documents 91–100

These documents frequently transform an ordinary case into an extraordinary one.

Public Service

91. Military Service Records

92. Family Military Service Records

93. First Responder Service Records

Professional Excellence

94. National Awards

95. Industry Awards

96. Professional Recognition

Extraordinary Contributions

97. Published Works

98. Media Coverage

99. Evidence of Exceptional Talent

100. Attorney Equities Memorandum

The Most Important Document on This Entire List

Many applicants assume the most important document is:

• a tax return;
• a diploma;
• a medical record;
• a marriage certificate.

Often it is not. The most important document may be:

The Attorney Equities Memorandum

The memorandum serves as the roadmap for the officer. It explains:

• positive factors;
• adverse factors;
• mitigating circumstances;
• humanitarian concerns;
• legal authority;
• reasons favorable discretion should be exercised.

Think of it as the executive summary of the entire case. Without it, the officer may see 500 pages of evidence. With it, the officer sees a coherent story.

How to Organize an Immigration Equities Package

The strongest packages are usually organized as follows:

Section 1: Cover Letter

Section 2: Attorney Equities Memorandum

Section 3: Family Unity Evidence

Section 4: Humanitarian Evidence

Section 5: Employment and Tax Records

Section 6: Education and Community Contributions

Section 7: Character and Rehabilitation Evidence

Section 8: Exceptional Equities

Section 9: Exhibits and Index

A well-organized package often increases the likelihood that important evidence will actually be reviewed and understood.

Richard Herman’s Observation

One of the biggest misconceptions about adjustment cases is that stronger evidence simply means more evidence. That is not true. A 1,000-page filing can be weaker than a 150-page filing. The goal is not volume.

The goal is persuasion.

The best Immigration Equities Packages accomplish three things:

1. They prove eligibility.
2. They demonstrate positive equities.
3. They make it easy for the officer to conclude that favorable discretion is warranted.

In the post-PM-602-0199 environment, applicants who proactively build a persuasive discretionary record may place themselves in a significantly stronger position than applicants who simply submit the minimum required forms. In the next section we will examine how immigration lawyers build Attorney Equities Memoranda, the strategic centerpiece of many successful discretionary cases, and why the narrative of a case may be just as important as the documents themselves.

The Attorney Equities Memorandum

The Most Important Document Most Adjustment Applicants Never Submit

If there is one concept that separates a routine adjustment filing from a strategically prepared discretionary case, it is the Attorney Equities Memorandum. Most applicants submit documents. The strongest applicants submit a narrative. That narrative is often what determines whether a USCIS officer views a case as:

• an ordinary application file; or
• a compelling request for favorable discretion.

After discussing the legal framework in the previous sections—including INA §245, the USCIS Policy Manual, Matter of Arai, Matter of Marin, Matter of Mendez-Moralez, and PM-602-0199, one reality becomes clear:

Evidence alone is not enough.

The evidence must be organized, contextualized, explained, and connected to the legal standards governing discretionary decision-making. That is the purpose of an Attorney Equities Memorandum.

What Is an Attorney Equities Memorandum?

An Attorney Equities Memorandum is a legal brief submitted to USCIS explaining why favorable discretion should be exercised. Think of it as a roadmap. Without a roadmap, an officer may receive:

• hundreds of pages of records;
• dozens of affidavits;
• years of tax returns;
• medical evidence;
• employment records;
• educational achievements.

The officer sees documents. The memorandum explains what those documents mean. It answers the question:

Why should USCIS approve this case?

Why PM-602-0199 Makes These Memoranda More Important

Prior to PM-602-0199, many adjustment applications were submitted with little more than required forms and supporting documentation. For straightforward cases, that often worked. However, once USCIS began emphasizing discretionary review, many practitioners started asking a different question: If officers are being instructed to think about discretion, should attorneys be making the discretionary argument affirmatively? The answer is increasingly yes. The strongest cases no longer assume the officer will identify favorable equities independently.

• They highlight them.
• They organize them.
• They explain them.
• They frame them within the governing legal standards.

The Officer Reviewing Your File Has Limited Time

One of the biggest mistakes applicants make is assuming that every page submitted receives equal attention. In reality, USCIS officers manage significant caseloads. They review:

• forms;
• exhibits;
• government databases;
• interview notes;
• prior filings;
• background checks.

The officer may be presented with hundreds or even thousands of pages of material. The Attorney Equities Memorandum serves as an executive summary. It tells the officer:

• What matters.
• Why it matters.
• Where to find it.
• How it relates to discretion.

This alone can dramatically improve the effectiveness of a filing.

What an Effective Equities Memorandum Looks Like

The strongest memoranda generally follow a consistent structure.

Section One: Introduction

The memorandum should begin with a concise explanation of the case. For example: This memorandum is submitted in support of Applicant’s Form I-485 and requests a favorable exercise of discretion under INA §245. The introduction identifies:

• the applicant;
• the basis for adjustment;
• the procedural posture;
• the purpose of the memorandum.

The goal is clarity.

Section Two: Procedural History

Many immigration cases involve complex histories. Examples include:

• prior visa classifications;
• prior adjustment filings;
• SEVIS complications;
• employment authorization issues;
• prior removal proceedings;
• waivers;
• travel history.

Rather than forcing the officer to reconstruct the timeline, the memorandum should provide a clear chronology. A well-written timeline often eliminates confusion before it arises.

Section Three: Legal Framework

This section explains the governing legal standards. Depending upon the case, attorneys may discuss:

• INA §245;
• the USCIS Policy Manual;
• Matter of Arai;
• Matter of Marin;
• Matter of Mendez-Moralez;
• relevant federal court decisions.

The goal is not to overwhelm the officer with legal citations. The goal is to establish the framework through which favorable discretion should be evaluated.

The Most Important Section: Positive Equities

This is where many memoranda succeed or fail. Too often attorneys merely list exhibits. The better approach is to tell a story. Each equity should be addressed separately.

Family Unity

Discuss:

• spouse;
• children;
• parents;
• caregiving responsibilities;
• dependency relationships.

Do not merely state that family members exist. Explain the role the applicant plays within the family.

Employment and Economic Contributions

Discuss:

• employment history;
• professional achievements;
• tax compliance;
• business ownership;
• job creation.

Explain how the applicant contributes to the economy.

Education and Future Potential

Discuss:

• academic achievement;
• professional licensing;
• research;
• scholarships;
• future career plans.

This section can be particularly powerful for students, physicians, researchers, and highly skilled professionals.

Community Contributions

Discuss:

• volunteer work;
• nonprofit involvement;
• religious participation;
• civic engagement;
• leadership roles.

This evidence often demonstrates integration into American society.

Humanitarian Factors

Discuss:

• medical conditions;
• caregiving obligations;
• disabilities;
• mental health concerns;
• special-needs children;
• country-condition concerns.

These factors often carry significant weight.

Rehabilitation

Where adverse factors exist, rehabilitation should be addressed directly. Avoiding the issue is usually a mistake. Instead:

• acknowledge the problem;
• explain the circumstances;
• demonstrate growth;
• document rehabilitation.

This approach often enhances credibility.

Addressing Negative Factors

One of the most common mistakes in immigration advocacy is pretending adverse facts do not exist. USCIS generally already knows. Background checks. Prior filings. Government databases. Interview questioning. These often reveal issues regardless of whether they are discussed. The better strategy is usually transparency. Strong memoranda confront adverse factors directly. Examples include:

• status violations;
• unlawful employment;
• prior overstays;
• arrests;
• convictions;
• prior immigration violations.

The discussion should then explain:

• context;
• mitigation;
• rehabilitation;
• positive equities outweighing negative factors.

This is the balancing framework reflected in decisions such as Matter of Marin and Matter of Mendez-Moralez.

The Psychology of Persuasion

The best memoranda do more than recite facts. They help the officer understand the applicant as a person. Consider the difference.

Weak Presentation

Applicant has two children.

Strong Presentation

Applicant serves as the primary caregiver for two U.S. citizen children, transports them to school and medical appointments, provides financial support, and manages daily childcare responsibilities while the U.S. citizen spouse works full-time. The facts may be similar. The impact is very different. Persuasion often lies in context.

Why Affidavits Matter

One of the most underutilized tools in discretionary advocacy is the affidavit. Documents prove events. Affidavits explain meaning. An affidavit may explain:

• family dependence;
• medical needs;
• educational goals;
• rehabilitation efforts;
• community involvement.

The strongest affidavits are detailed, specific, and credible. They tell stories. They provide examples. They explain consequences.

Case Study: The Physician

Consider a physician seeking adjustment. The basic filing proves eligibility. An equities memorandum may additionally explain:

• physician shortages in the community;
• patients served;
• hospital support;
• research contributions;
• public-health impact.

The physician becomes more than a beneficiary. The physician becomes an asset to the community.

Case Study: The F-1 Student

Consider an F-1 student who experienced a status violation. A strong memorandum may discuss:

• academic achievements;
• scholarships;
• research contributions;
• volunteer work;
• future professional goals;
• rehabilitation of any compliance issues.

The narrative shifts from a technical violation to a broader story of contribution and future potential.

Case Study: The Parent of U.S. Citizen Children

The strongest memoranda often focus heavily on:

• caregiving;
• educational involvement;
• medical responsibilities;
• emotional dependency.

These cases frequently contain powerful family-unity equities.

The Most Common Mistakes

After reviewing thousands of immigration cases, several recurring mistakes appear.

Mistake #1: No Memorandum

The evidence is submitted without explanation.  

Mistake #2: Generic Memorandum

The memorandum contains legal conclusions but little human detail.  

Mistake #3: Ignoring Negative Factors

The memorandum fails to address known issues.  

Mistake #4: Excessive Length Without Organization

More pages do not necessarily create a stronger case.  

Mistake #5: No Narrative

The officer receives documents but never learns the applicant’s story.

Richard Herman’s Observation

If PM-602-0199 ultimately changes anything, it may not be approval rates. It may be presentation quality. For years, many adjustment filings focused almost entirely on eligibility. The future may belong to applicants who understand something different: Discretion is often about storytelling supported by evidence. The strongest adjustment cases are not simply legally sufficient.

• They are persuasive.
• They explain who the applicant is.
• They explain why the applicant matters.
• They explain why approval serves family unity, humanitarian interests, economic stability, and the public good.
• The Attorney Equities Memorandum is where all of those themes come together.

It is often the document that transforms a collection of exhibits into a compelling case for favorable discretion.

Building Immigration Equities Packages for Real Cases

Strategic Guidance for Marriage Cases, F-1 Students, H-1B Professionals, Physicians, Entrepreneurs, Waiver Applicants, and Applicants with Adverse Factors

One of the biggest misconceptions about favorable discretion is the belief that every case should be presented the same way. That is not how effective immigration advocacy works. The strongest Immigration Equities Packages are customized. A physician’s equities package should look very different from a college student’s. An entrepreneur’s package should look different from a marriage-based applicant’s. A waiver applicant’s package should look different from someone with a pristine immigration history. The legal principles discussed in Part II remain the same. The balancing framework described in Matter of Arai, Matter of Marin, and Matter of Mendez-Moralez still applies. What changes is the evidence. What changes is the story. What changes is the emphasis. This section examines how favorable discretion can be developed in several common adjustment-of-status scenarios.  

Marriage-Based Adjustment Cases

Marriage-based cases may ultimately become some of the most scrutinized adjustment applications under the framework discussed in PM-602-0199. Many applicants assume that proving a bona fide marriage is enough. That may establish eligibility. It does not necessarily maximize discretion.  

What USCIS Is Looking For

Beyond proving the marriage itself, officers may evaluate:

• family stability;
• caregiving responsibilities;
• shared financial obligations;
• community integration;
• future plans;
• hardship implications.

 

Strong Marriage-Based Equities

Examples include:

Family Dependency

Evidence that one spouse relies heavily on the other emotionally, financially, medically, or practically.

Parenting Responsibilities

Evidence of involvement with:

• school activities;
• medical care;
• extracurricular programs;
• transportation.

Community Ties

Evidence that the couple has become integrated into the local community.

Long-Term Stability

Evidence of shared planning and commitment.  

Common Mistake

Many couples submit hundreds of pages proving the marriage is real but almost nothing demonstrating why approval serves broader discretionary goals. Those are different issues.  

F-1 Students

F-1 students may be among the most overlooked beneficiaries of an Immigration Equities Package. Many students mistakenly believe: “I am young. I do not own a business. I do not have children. I have no equities.” Often the opposite is true.  

Strong Student Equities

Academic Achievement

• GPA
• scholarships
• awards
• dean’s list recognition

Research Contributions

• publications
• presentations
• patents
• laboratory work

Community Involvement

• tutoring
• mentoring
• volunteer activities

Future Contributions

One of the most persuasive arguments may be:

• What will this student contribute over the next 20 years?
• Future physicians.
• Future engineers.
• Future researchers.
• Future entrepreneurs.
• Future educators.

These are powerful equities.  

Example

A Belarusian student pursuing higher education may possess strong discretionary factors including:

• academic excellence;
• community integration;
• family residing in the United States;
• future workforce contributions;
• humanitarian concerns involving conditions abroad.

A strong equities package should address all of them.  

H-1B Professionals

H-1B professionals often possess equities that are surprisingly underdeveloped in adjustment filings. Many applications focus exclusively on:

• employment authorization;
• labor certification;
• immigrant petition approval.

Yet these applicants frequently possess exceptional discretionary factors.  

High-Value H-1B Equities

Specialized Skills

Evidence demonstrating unique expertise.

Economic Contributions

Evidence showing:

• taxes paid;
• projects completed;
• revenue generated;
• innovation created.

Community Involvement

Volunteer and charitable activities often strengthen the narrative.

Family Stability

Many H-1B workers have established deep roots in the United States.

What Officers May Find Persuasive

A software engineer who merely occupies a position is one thing. A software engineer whose work supports critical infrastructure, creates jobs, mentors younger workers, and contributes to the local community presents a much stronger discretionary case.  

Physicians and Healthcare Workers

Healthcare professionals may possess some of the strongest equities available in adjustment practice. This is particularly true in underserved communities.  

Evidence That Carries Significant Weight

Physician Shortage Data

Documentation demonstrating community need.

Employer Support Letters

Hospital systems can often provide compelling evidence.

Patient Impact Evidence

Without violating privacy rules, employers may document:

• services provided;
• populations served;
• specialty shortages.

Research Contributions

Academic physicians often possess additional equities through:

• publications;
• teaching;
• research activities.

 

Why These Cases Are Powerful

Healthcare workers frequently embody multiple positive factors simultaneously:

• public benefit;
• economic contribution;
• community service;
• humanitarian value.

Few categories offer a stronger discretionary narrative.  

Entrepreneurs and Business Owners

Entrepreneurs often focus almost entirely on business records. That is only part of the story. The strongest cases explain broader impact.  

Key Equities

Job Creation

How many workers depend on the business?

Economic Activity

What revenue is generated?

Community Impact

How does the business serve local residents?

Innovation

Has the business developed new products or services?

What Officers Should Understand

A successful entrepreneur is not merely seeking a green card. The entrepreneur may support:

• employees;
• customers;
• vendors;
• local economic development.

That context matters.  

Waiver Applicants

Applicants seeking waivers often have the greatest need for strong discretionary evidence. Waiver law has always involved balancing favorable and adverse factors. As a result, Immigration Equities Packages may be particularly important.

Strong Waiver Equities

• Family Hardship
• Rehabilitation
• Community Contributions
• Long-Term Residence
• Tax Compliance
• Stable Employment
• Caregiving Responsibilities

Strategic Observation

Many waiver applicants focus entirely on hardship. That is understandable. However, hardship is often only one component of a broader discretionary argument.  

Applicants with Criminal History

Perhaps no category benefits more from proactive discretionary advocacy.  

What USCIS Wants to Know

The central question is usually not:

Did something happen?

The agency often already knows the answer. The more important question becomes:

What happened afterward?

 

Strong Rehabilitation Evidence

• Treatment Records
• Counseling Records
• Educational Achievement
• Employment Success
• Community Service
• Family Responsibilities
• Character References
• Psychological Evaluations

 

The Passage of Time Matters

A single incident fifteen years ago may be viewed differently than a recent incident. Evidence demonstrating sustained rehabilitation often becomes critical.  

Applicants with Immigration Violations

This category may become especially important under PM-602-0199. Examples include:

• overstays;
• status violations;
• unauthorized employment;
• prior removal proceedings;
• compliance issues.

 

What Officers Often Evaluate

• Why Did the Violation Occur?
• Was It Intentional?
• What Has Happened Since?
• What Positive Equities Exist?
• Does the Record Demonstrate Responsibility?

 

Common Mistake

Many applicants attempt to minimize or ignore prior immigration issues. That approach can undermine credibility. A better strategy often involves:

• acknowledging the issue;
• providing context;
• documenting compliance efforts;
• emphasizing positive equities.

The Cases Most Likely to Benefit from an Equities Package

Although every adjustment case may benefit from additional discretionary evidence, certain categories stand out. These include:

• Marriage-Based Applicants
• F-1 Students
• Physicians
• H-1B Professionals
• Entrepreneurs
• Applicants with Arrest Histories
• Applicants with Status Violations
• Waiver Applicants
• Applicants Responding to RFEs
• Applicants Responding to NOIDs
• Applicants with Complex Immigration Histories

 

What All Successful Cases Have in Common

Despite their differences, successful discretionary cases tend to share several characteristics. They are:

• Organized
• Credible
• Well-Documented
• Honest About Adverse Factors
• Supported by Independent Evidence
• Focused on Positive Equities
• Most importantly, they tell a coherent story.

 

Richard Herman’s Prediction

One of the lasting effects of PM-602-0199 may be the emergence of what could be called “equities-based immigration advocacy.” For years, many adjustment filings focused primarily on legal eligibility. The next generation of successful filings may increasingly focus on something else: demonstrating why approval advances family unity, economic prosperity, humanitarian values, and the public interest. Applicants who begin building that record early may have a significant advantage. Waiting until an interview, RFE, NOID, or denial often makes the process more difficult. The best time to build positive equities is before USCIS asks for them. In the next section, we will examine emerging trends, likely future developments, and Richard Herman’s predictions regarding discretionary adjudications, RFEs, NOIDs, litigation, AI-assisted review systems, and the future of adjustment of status under PM-602-0199.

The Future of Adjustment of Status

Richard Herman’s Predictions on PM-602-0199, Discretion, RFEs, NOIDs, AI Review, and the Next Generation of Immigration Advocacy

When USCIS issued Policy Memorandum PM-602-0199, much of the immediate discussion focused on one question:

Will more adjustment cases be denied?

That question is understandable. But it may not be the most important one. The more significant question may be:

How will adjustment practice evolve over the next several years?

Policy memoranda come and go. Administrations change. Litigation alters implementation. Agency priorities shift. Yet some developments leave lasting effects even when the original controversy fades. PM-602-0199 may prove to be one of those developments. Whether or not the memorandum ultimately results in significantly higher denial rates, it has already changed the conversation. It has forced applicants, attorneys, employers, universities, and policymakers to focus on something that was often overlooked: Favorable discretion matters. The long-term consequences may be substantial.  

Prediction #1:

Adjustment of Status Cases Will Become More Document-Intensive

Historically, many adjustment cases were filed with:

• required forms;
• civil documents;
• medical examinations;
• financial sponsorship evidence.

For straightforward cases, that was often sufficient. The future may look different. Increasingly, attorneys are likely to submit:

• discretionary memoranda;
• community evidence;
• rehabilitation evidence;
• hardship documentation;
• employment impact records;
• humanitarian evidence.

The distinction between a routine filing and a strategic filing may become more pronounced. Applicants who proactively build strong discretionary records may place themselves in a stronger position than applicants who merely submit minimum documentation.  

Prediction #2:

RFEs and NOIDs May Become More Sophisticated

One of the most likely consequences of PM-602-0199 is not necessarily more denials. It may be more requests for information. USCIS already possesses powerful tools to obtain additional evidence through:

• Requests for Evidence (RFEs);
• Notices of Intent to Deny (NOIDs);
• interviews;
• follow-up questioning.

As discretion receives greater emphasis, officers may seek more information regarding:

• family relationships;
• employment history;
• tax compliance;
• immigration history;
• rehabilitation;
• public-benefit factors.

Applicants should not be surprised if future RFEs increasingly focus on discretionary issues rather than purely technical eligibility questions.  

Prediction #3:

Credibility Will Become Increasingly Important

One theme appears repeatedly throughout immigration law. Credibility matters. When officers evaluate discretion, they often examine whether the applicant’s story is:

• consistent;
• supported;
• documented;
• believable.

Even strong equities may lose value if credibility concerns arise. This is one reason attorneys increasingly focus on ensuring consistency across:

• prior visa applications;
• adjustment filings;
• interviews;
• social media;
• supporting affidavits;
• government records.

The strongest cases are often those with the fewest inconsistencies.  

Prediction #4:

AI and Technology Will Play a Larger Role

One of the most significant long-term developments in immigration adjudications may have little to do with PM-602-0199 itself. It may involve technology. USCIS, DHS, CBP, ICE, and other agencies already possess access to vast amounts of information. At the same time, government agencies continue investing in:

• data analytics;
• fraud detection tools;
• digital review systems;
• automated case management technologies.

While AI does not make immigration decisions independently, technology increasingly assists officers in identifying:

• inconsistencies;
• anomalies;
• omissions;
• patterns;
• potential credibility concerns.

As discussed in our article on Can USCIS Use AI to Scrutinize Your Immigration Case?, applicants should assume that information submitted to the government may be reviewed more comprehensively than ever before. This reality reinforces the importance of accuracy, consistency, and documentation.

Prediction #5:

Attorney Equities Memoranda Will Become More Common

For years, detailed legal memoranda were typically associated with:

• waivers;
• motions;
• appeals;
• complex removal cases.

That may change. Increasingly, attorneys may begin treating adjustment filings more like discretionary advocacy packages. The result could be a significant increase in:

• legal briefs;
• equities memoranda;
• exhibit indexes;
• discretionary submissions.

In many cases, the memorandum may become one of the most important documents in the file.  

Prediction #6:

Litigation Will Continue

One of the most predictable consequences of major immigration policy changes is litigation. PM-602-0199 is unlikely to be an exception. Immigration lawyers, advocacy organizations, employers, universities, and affected applicants will continue scrutinizing how the policy is implemented. Future litigation may involve:

• arbitrary decision-making;
• inconsistent adjudications;
• due process concerns;
• Administrative Procedure Act challenges;
• interpretation of discretionary authority.

Federal courts will likely continue shaping the boundaries of adjustment adjudications.

Prediction #7:

Family-Based Cases Will Receive Increased Attention

Family-based immigration remains one of the largest adjustment categories. As discretion receives more attention, officers may increasingly focus on:

• bona fide relationships;
• caregiving responsibilities;
• dependency;
• family hardship;
• long-term stability.

Applicants should expect officers to look beyond basic eligibility documents. The strength of the overall family narrative may become increasingly important.  

Prediction #8:

Employment-Based Cases Will Need Better Storytelling

Employment-based applicants often possess extraordinary equities. Unfortunately, those equities are not always presented effectively. A physician may save lives. A researcher may develop groundbreaking innovations. An entrepreneur may create jobs. An engineer may contribute to critical infrastructure. Yet adjustment filings frequently reduce these individuals to forms and supporting exhibits. The future may require more effective presentation of these contributions.  

Prediction #9:

Humanitarian Evidence Will Carry Greater Weight

One lesson from decades of immigration practice is that humanitarian factors often resonate strongly with decision-makers. Examples include:

• serious illness;
• disability;
• caregiving obligations;
• special-needs children;
• mental health concerns;
• humanitarian conditions abroad.

These factors have always mattered. PM-602-0199 may encourage applicants and attorneys to document them more thoroughly.  

Prediction #10:

The Strongest Cases Will Be Built Long Before Filing

Perhaps the most important prediction is also the simplest. The best discretionary cases are rarely built overnight. The strongest records are developed over time. Applicants who consistently:

• pay taxes;
• volunteer;
• pursue education;
• maintain employment;
• support family members;
• contribute to their communities;

often accumulate positive equities naturally. The challenge is documenting them effectively.  

What PM-602-0199 May Ultimately Be Remembered For

Several years from now, immigration practitioners may look back on PM-602-0199 and conclude that its greatest impact was not a dramatic increase in denials. Its greatest impact may have been changing how lawyers prepare cases. For decades, many adjustment filings focused primarily on eligibility. The memorandum forced practitioners to revisit a question that has existed since Congress enacted adjustment of status: Why should favorable discretion be exercised? That question is now driving a new generation of immigration advocacy.  

The Rise of Equities-Based Immigration Advocacy

Increasingly, successful cases may depend upon an applicant’s ability to demonstrate:

• Family Unity
• Community Contribution
• Economic Value
• Humanitarian Need
• Rehabilitation
• Future Potential
• Public Benefit

These concepts have always existed. The difference is that more people are paying attention to them now.

Richard Herman’s Final Observation

Every major immigration policy shift creates uncertainty. PM-602-0199 is no exception. Yet uncertainty often creates opportunity. Applicants who understand the role of discretion have an opportunity to present stronger cases. Attorneys who understand discretionary advocacy have an opportunity to provide greater value. Employers, students, physicians, entrepreneurs, families, and humanitarian applicants all have an opportunity to build records that tell a compelling story. The future of adjustment practice may not be defined by who qualifies. It may increasingly be defined by who persuades. That is why the Immigration Equities Package is likely to become one of the most important concepts in immigration law over the next decade.  

Frequently Asked Questions About PM-602-0199, Adjustment of Status Discretion, and Immigration Equities Packages

The Ultimate FAQ Resource for Green Card Applicants in 2026

The following questions are based on inquiries immigration lawyers throughout the United States have received since USCIS issued Policy Memorandum PM-602-0199. These questions are also the types of queries increasingly being asked in Google, ChatGPT, Gemini, Claude, Perplexity, and AI-powered search tools.

---

General Questions About PM-602-0199 What is USCIS Memo PM-602-0199? PM-602-0199 is a USCIS policy memorandum issued on May 21, 2026, emphasizing that adjustment of status under INA §245 is a discretionary benefit and not an entitlement. The memo instructs officers to evaluate whether applicants merit a favorable exercise of discretion in addition to meeting statutory eligibility requirements.

---

Did PM-602-0199 change the law? No. USCIS cannot change federal immigration statutes through a policy memorandum. Congress enacted adjustment of status through INA §245. The memo does not change statutory eligibility requirements. Instead, it focuses on how USCIS officers exercise discretionary authority during adjudications.

---

Does PM-602-0199 make adjustment of status harder? Possibly in some cases. The memo may result in greater scrutiny of discretionary factors, stronger documentation requirements, additional RFEs, and more detailed interviews. However, the memo does not eliminate adjustment of status or automatically make applicants ineligible.

---

Is adjustment of status still available after PM-602-0199? Yes. Adjustment of status remains one of the primary pathways to lawful permanent residence in the United States. Nothing in PM-602-0199 eliminates adjustment eligibility for qualifying applicants.

---

Did USCIS walk back PM-602-0199? Many immigration lawyers believe USCIS later clarified aspects of the memorandum after significant criticism from attorneys, employers, universities, and advocacy organizations. Although the legal principles remain in place, subsequent agency messaging appeared intended to reassure stakeholders that adjustment of status remains available and that individualized review remains required.

---

Questions About Discretion What does “favorable discretion” mean? Favorable discretion means USCIS determines that an applicant deserves approval after considering all relevant circumstances, including positive and negative factors.

---

What is the difference between eligibility and discretion? Eligibility asks: Can you receive a green card? Discretion asks: Should USCIS approve your green card application? Both issues matter.

---

Can USCIS deny an I-485 even if I am eligible? Yes. Adjustment of status has always been discretionary. In certain circumstances, USCIS may deny an application despite statutory eligibility.

---

Does USCIS have unlimited discretion? No. USCIS must follow federal statutes, regulations, agency guidance, and constitutional principles. Discretionary decisions cannot be arbitrary, discriminatory, or contrary to law.

---

What legal authority gives USCIS discretion? The authority comes primarily from INA §245, which provides that USCIS “may” adjust status in its discretion.

---

What cases discuss favorable discretion? Several important decisions include:

• Matter of Arai
• Matter of Marin
• Matter of Mendez-Moralez
• Patel v. Garland

These cases continue to influence discretionary analysis across immigration law.

---

Questions About Immigration Equities Packages What is an Immigration Equities Package? An Immigration Equities Package is a collection of documents and legal arguments designed to demonstrate why USCIS should exercise favorable discretion and approve an application.

---

Is an Immigration Equities Package required? No. USCIS generally does not require one. However, many applicants may benefit from proactively presenting favorable discretionary evidence.

---

Who should consider preparing an Immigration Equities Package? Particularly strong candidates include:

• marriage-based applicants;
• F-1 students;
• H-1B professionals;
• physicians;
• entrepreneurs;
• waiver applicants;
• applicants with prior immigration violations;
• applicants with arrest histories;
• applicants responding to RFEs or NOIDs.

---

When should I start building an Immigration Equities Package? Ideally before filing. The strongest discretionary cases are built over time rather than assembled after problems arise.

---

Can I submit an equities package after filing? Yes. Depending on the circumstances, evidence may be submitted:

• with the initial filing;
• at the interview;
• in response to an RFE;
• in response to a NOID;
• during litigation.

Early preparation is usually preferable.

---

Questions About Positive Equities What are positive equities in immigration law? Positive equities are favorable factors supporting approval. Examples include:

• family ties;
• employment history;
• tax compliance;
• education;
• volunteer work;
• rehabilitation;
• humanitarian concerns.

---

What is the strongest positive equity? There is no universal answer. The most persuasive equity depends on the case. Commonly powerful factors include:

• U.S. citizen children;
• caregiving responsibilities;
• long-term residence;
• significant community service;
• military service;
• extraordinary professional contributions.

---

Do tax returns help an I-485 case? Often yes. Tax compliance may demonstrate responsibility, honesty, and economic contribution.

---

Does volunteer work help? Yes. Community service frequently serves as evidence of integration, character, and commitment to society.

---

Can letters of support help? Absolutely. Detailed, credible letters often provide context that official documents cannot. The best letters contain specific examples rather than generic praise.

---

Questions About Family-Based Cases Will marriage-based green card cases face more scrutiny? Possibly. Marriage-based cases remain eligible for adjustment, but officers may pay greater attention to discretionary considerations and credibility issues.

---

Can family hardship help an adjustment case? Yes. Hardship may be a significant positive equity, particularly when supported by documentation.

---

Do U.S. citizen children help an I-485 application? Often yes. Family unity has long been considered a favorable factor in immigration adjudications.

---

Should I document caregiving responsibilities? Absolutely. Caregiving evidence can be among the strongest discretionary factors available.

---

Questions About Students and Employment-Based Applicants Can F-1 students benefit from an Immigration Equities Package? Yes. Students often possess strong equities involving education, research, leadership, volunteer service, and future contributions.

---

Can H-1B workers benefit from an equities package? Yes. Many H-1B professionals have significant economic, professional, and community contributions that strengthen discretionary arguments.

---

Do physicians have strong discretionary factors? Often yes. Healthcare providers frequently demonstrate:

• public benefit;
• community service;
• workforce contributions;
• humanitarian impact.

---

Can entrepreneurs use an Immigration Equities Package? Absolutely. Job creation, innovation, economic activity, and community involvement may all serve as positive equities.

---

Questions About Criminal History and Immigration Violations Can an applicant with an arrest record still build a strong discretionary case? Yes. Many successful cases involve evidence of rehabilitation, character development, and positive contributions after the incident.

---

Does rehabilitation matter? Very much. In many cases, rehabilitation becomes one of the most important factors in the discretionary analysis.

---

Can prior immigration violations be overcome? Sometimes. The significance depends on:

• the violation;
• the circumstances;
• the passage of time;
• the existence of positive equities.

---

Should I disclose negative information? Generally yes. Attempting to conceal information often creates greater problems than addressing it honestly and proactively.

---

Questions About RFEs and NOIDs Will PM-602-0199 result in more RFEs? Possibly. Many practitioners expect USCIS to seek additional discretionary evidence in some cases.

---

What should I do if I receive an RFE? Take it seriously. Consult experienced counsel and provide organized, well-documented responses.

---

What should I do if I receive a NOID? Act immediately. NOIDs often involve significant concerns that require careful legal and factual responses.

---

Questions About the Future Will USCIS deny more I-485 applications? No one knows. The long-term impact of PM-602-0199 remains uncertain. However, stronger documentation and proactive case preparation are likely to become increasingly important.

---

Will AI affect immigration adjudications? Government agencies continue expanding the use of technology, analytics, and digital review systems. Applicants should assume that consistency and credibility matter more than ever.

---

What is the best way to strengthen an adjustment case today? Three things:

1. Prove eligibility.
2. Build positive equities.
3. Present a persuasive, well-documented narrative.

Applicants who do all three are often in the strongest position.    

Final Thoughts: The Future Belongs to the Best-Prepared Applicants

The biggest lesson of PM-602-0199 is not fear. It is preparation. For years, many applicants viewed adjustment of status primarily as a paperwork process. Increasingly, it may become a process that combines:

• eligibility;
• documentation;
• credibility;
• storytelling;
• discretionary advocacy.

The applicants who understand this shift early will often be best positioned for success.    

Resource Center

PM-602-0199, Adjustment of Status Discretion, Immigration Equities Packages, RFEs, NOIDs, Waivers, and Green Card Strategy

USCIS and Government Resources

• USCIS Policy Memorandum PM-602-0199: Adjustment of Status and Discretion
• USCIS Policy Manual, Volume 7: Adjustment of Status
• USCIS Adjustment of Status Overview
• USCIS Form I-485
• INA §245: Adjustment of Status
• INA §212: Grounds of Inadmissibility

---

Key Case Law on Immigration Discretion

• Matter of Arai, 13 I&N Dec. 494 (BIA 1970)
• Matter of Marin, 16 I&N Dec. 581 (BIA 1978)
• Matter of Mendez-Moralez, 21 I&N Dec. 296 (BIA 1996)
• Patel v. Garland, 596 U.S. 328 (2022)

---

Herman Legal Group Resources on PM-602-0199 and I-485 Discretion

• Did USCIS Walk Back the I-485 Memo? Latest Updates
• Will USCIS Deny My I-485 Under the New 2026 Memo?
• Can USCIS Force Consular Processing? Risks Under the New Memo
• What Happens If Your Adjustment of Status Is Denied?
• USCIS I-485: What Immigrants Must Prove Under the New Memo
• USCIS AI I-485 2026: Transforming Immigration Applications
• H-1B I-485 2026: Should You Still File Adjustment of Status?
• Should H-1B Holders Avoid Filing I-485 Right Now?

---

Herman Legal Group Green Card and Adjustment Resources

• Employment-Based Immigration
• Marriage Green Card 2026 Mega-Guide
• Adjusting Status Through Marriage from F-1, H-1B, or B-2
• Who Can File for a Marriage-Based Green Card?
• Top Firms for Marriage Green Card Lawyer Services

---

Herman Legal Group RFE, NOID, and Denial Resources

• How Can I Overcome an RFE or NOID?
• What to Do If You Have Received an RFE or NOID
• What If I Get an RFE or NOID With My I-485?
• How to Win a Spousal I-130 or I-751 After RFE or NOID

---

Herman Legal Group Waiver and Consular Processing Resources

• Immigration Waivers
• How to Win Your I-601 or I-601A Waiver Application
• The I-601A Provisional Waiver of Unlawful Presence
• Can You Travel Outside the U.S. While an I-601A Waiver Is Pending or Approved?

---

Herman Legal Group Removal Defense and Litigation Resources

• Legal Assistance for Deportation Defense
• Deportation Defense Lawyers in Cleveland, Ohio
• Cleveland Immigration Court 2026 Survival Guide
• Immigration Bond in Ohio: What to Do in the First 72 Hours After an ICE Arrest
• I’m in Removal Proceedings: Can I Stay in the U.S.?
• Green Card Holder Facing Deportation in Cleveland, Ohio

---

Herman Legal Group Security Vetting, Delays, and Policy Resources

• Rhode Island Court Strikes Down USCIS Benefits Freeze
• Frozen Files: USCIS PM-602-0192 Freeze Halts Cases
• USCIS Vetting Center, High-Risk Countries, and Social Media Screening
• USCIS Security Vetting Rules
• The 18-Month USCIS Work Permit Explained

---

Herman Legal Group Firm and Consultation Resources

• Meet Immigration Lawyer Richard Herman
• About Herman Legal Group
• Book a Consultation with Herman Legal Group
• Cleveland Immigration Lawyers

 

Key Takeaway

PM-602-0199 did not eliminate adjustment of status. But it did make one point impossible to ignore: Applicants should be prepared to show not only that they are eligible for a green card, but also that they deserve a favorable exercise of discretion. That means the strongest cases may increasingly depend on:

• thoughtful preparation;
• credible documentation;
• positive equities;
• family hardship evidence;
• economic contribution evidence;
• rehabilitation evidence;
• community involvement;
• persuasive legal advocacy.

An Immigration Equities Package is not just a checklist. It is a strategic record designed to show USCIS why approval is justified, humane, lawful, and in the public interest.    

 

Need Help Building a Winning Immigration Equities Package?

USCIS officers do not simply review forms. They review people. They review families. They review careers. They review life stories. The challenge is ensuring that your story is presented clearly, persuasively, and strategically. Whether you are:

• applying for a marriage-based green card;
• adjusting through employment;
• pursuing a green card as an F-1 student;
• responding to an RFE or NOID;
• overcoming prior immigration violations;
• addressing criminal history concerns;
• seeking a waiver;
• navigating heightened scrutiny under PM-602-0199;

the way your case is documented may significantly affect the outcome. At Herman Legal Group, we help clients build comprehensive Immigration Equities Packages, develop persuasive Attorney Equities Memoranda, prepare for interviews, respond to RFEs and NOIDs, and present the strongest possible case for favorable discretion. Our team closely monitors:

• USCIS policy developments;
• adjustment of status adjudication trends;
• federal court decisions;
• discretionary review standards;
• evolving interpretations of PM-602-0199.

If you want a strategic assessment of your case and guidance on building a compelling record for favorable discretion, schedule a consultation with Richard Herman or an experienced Herman Legal Group attorney. Call +1-216-696-6170 Or schedule your consultation online today. The strongest adjustment cases rarely happen by accident. They are built deliberately, documented carefully, and presented strategically.  

Discretion in adjustment cases now also intersects with travel history, including the new advance parole risk for the 10-year unlawful-presence bar.

Applicants building an equities package should also understand the foundation: the 2026 USCIS I-485 memo, the risk that USCIS may deny adjustment under the new policy, the top I-485 denial risks, extraordinary-circumstances arguments, and the special concerns for marriage green card cases.

Federal Judge Strikes Down Trump’s 100000 H 1B Fee: Is the H-1B Crackdown Over?

What Employers, H-1B Workers, F-1 Students, Universities, Hospitals, and High-Skilled Immigrants Need to Know After the Massachusetts Federal Court Order

On June 8, 2026, a federal judge in Massachusetts delivered a major victory for employers, universities, hospitals, startups, high-skilled immigrants, and H-1B workers.

In State of California v. Mullin, U.S. District Judge Leo T. Sorokin ruled that the Trump Administration’s $100,000 H-1B payment requirement is unlawful. The court vacated the federal policy materials that implemented the fee, meaning the agencies cannot continue enforcing the policy as it was issued.

The case was brought by California, Massachusetts, and eighteen other states. In their complaint, the states argued that the Trump Administration attempted to impose a massive new H-1B financial barrier without congressional authorization, without proper notice-and-comment rulemaking, and without adequately considering the impact on public schools, universities, hospitals, research institutions, and state employers.

The court agreed with the states on several critical points.

Judge Sorokin held that the $100,000 H-1B payment was not a normal filing fee. It was not tied to adjudication costs. It was not enacted by Congress. It was not adopted through ordinary rulemaking. Instead, the court treated the payment as an unauthorized tax imposed through executive action.

That distinction matters enormously.

The ruling does not merely affect one filing fee. It challenges a broader legal theory behind the Trump Administration’s effort to reshape employment-based immigration through executive power.

For H-1B employers and workers, the immediate question is practical:

Is the $100,000 H-1B fee gone?

For now, the answer is yes: the Massachusetts federal court has vacated the agency policy implementing the fee. But the litigation is almost certainly not over. The government may appeal to the First Circuit, seek a stay, and ultimately ask the Supreme Court to intervene.

For high-skilled immigrants, the deeper question is even more important:

Does this mean the H-1B crackdown is over?

No.

The $100,000 fee was one of the most dramatic pieces of the Trump Administration’s skilled-immigration agenda, but it was never the only threat. Other H-1B restrictions, including wage-weighted lottery rules, intensified site visits, stricter employer compliance reviews, increased Requests for Evidence, consular scrutiny, social media vetting, and potential attacks on H-4 EAD and OPT/STEM OPT remain major concerns.

Herman Legal Group has been closely tracking these developments, including the original H-1B $100,000 filing fee, the lawsuit challenging the $100,000 H-1B fee, the broader Trump 2026 H-1B crackdown, and the new H-1B lottery rule for 2026–2027.

This article explains what the Massachusetts court decided, what happens next, and what employers and high-skilled immigrants should do now.

Key Takeaways

• Federal judge strikes down Trump’s $100000 H-1B Fee, classifying it as unlawful
• Court treated the fee as an unauthorized tax
• Fee currently cannot be enforced
• Appeal is expected
• Refund litigation may follow
• Other H-1B restrictions remain in place

   

Quick Answer: What Did the Massachusetts Court Decide About the $100,000 H-1B Fee?

The Massachusetts federal court ruled that the Trump Administration’s $100,000 H-1B payment requirement is unlawful because the Executive Branch lacked authority to impose it.

The court found that the agencies’ implementation of the payment requirement violated the Administrative Procedure Act and exceeded statutory authority. The court also concluded that the payment functioned as a tax, not a normal filing fee.

Judge Sorokin wrote that the “substance and application” of the $100,000 payment showed that it was a tax.

That is the heart of the ruling.

A normal immigration filing fee is supposed to help cover the cost of processing an application or petition. The court explained that Congress has authorized immigration adjudication fees under specific statutory limits. But the $100,000 H-1B payment was different. It was not designed to recover the cost of adjudicating an H-1B petition. It was a massive supplemental payment imposed on employers as a condition of access to the H-1B system.

The court therefore vacated the federal policy materials implementing the $100,000 payment requirement.

That matters because vacatur under the Administrative Procedure Act generally means the unlawful agency action is set aside. The court declined to issue a separate permanent injunction because it found that vacatur provided complete relief.

For employers, this means the policy materials requiring the $100,000 payment have been set aside.

For H-1B workers, this means the ruling attacks the fee requirement, not the validity of the H-1B category itself.

For F-1 students hoping to move from OPT or STEM OPT to H-1B, this decision may restore confidence among employers that were reluctant to sponsor workers under a six-figure payment regime.

For universities, hospitals, research centers, and public employers, the decision may preserve access to high-skilled workers in teaching, healthcare, science, engineering, and research roles.

Is the $100,000 H-1B Fee Gone Immediately?

For now, the court has vacated the agency policy implementing the $100,000 H-1B payment requirement.

That means USCIS, the State Department, DHS, and related agencies cannot continue enforcing the vacated policy unless a higher court stays or reverses the Massachusetts decision.

But employers should not assume the legal fight is finished.

The government is likely to consider several next steps:

1. Filing a notice of appeal to the U.S. Court of Appeals for the First Circuit.
2. Seeking a stay from Judge Sorokin.
3. Seeking an emergency stay from the First Circuit.
4. Asking the Supreme Court for emergency relief if the First Circuit denies a stay.
5. Continuing to defend the legality of the fee in related litigation.

Because another federal court previously reached a different conclusion in litigation involving the $100,000 H-1B fee, the issue may become a serious appellate conflict. That increases the chance of further review.

Employers should proceed carefully. The ruling is a major victory, but legal instability remains.

Does This Decision Apply Nationwide?

The court vacated the policy materials implementing the Proclamation’s $100,000 payment requirement. That is different from an injunction limited only to the plaintiff states.

In practical terms, vacatur under the APA generally sets aside the unlawful agency action itself. That makes the ruling potentially national in effect, because the policy materials are no longer valid agency action.

This is especially important for employers outside Massachusetts and outside the plaintiff states.

If the ruling remains in place, employers nationwide should not be required to comply with the vacated $100,000 payment policy.

However, two cautions are important.

First, the federal government may seek a stay. If a stay is granted, the government could potentially continue enforcing the fee during appeal.

Second, because litigation over nationwide vacatur is itself a developing area of law, employers should watch closely for USCIS guidance, State Department guidance, and appellate orders.

The bottom line: the decision is broad and powerful, but employers should not treat the issue as permanently resolved until the appeals process becomes clearer.

Timeline: The Rise and Fall of the $100,000 H-1B Fee

Understanding how the $100,000 H-1B fee emerged—and how it was struck down—helps explain why the Massachusetts decision may become one of the most important immigration cases of 2026.

The timeline also illustrates a broader story: the ongoing struggle between the Executive Branch, Congress, employers, states, universities, and the federal courts over the future of legal immigration.

September 2025: Trump Announces the $100,000 H-1B Fee

In September 2025, President Trump announced a sweeping new policy imposing a $100,000 payment requirement on certain H-1B petitions involving certain foreign nationals who did not already possess H-1B status or a valid H-1B visa. The policy was aimed at new entrants rather than all foreign nationals equally.

The Administration argued that the measure would:

• protect American workers;
• discourage excessive reliance on foreign labor;
• incentivize domestic hiring;
• reduce perceived abuse of the H-1B program.

The announcement immediately generated concern among:

• technology companies;
• hospitals;
• universities;
• research institutions;
• multinational corporations;
• immigration lawyers;
• international business groups.

Many observers viewed the fee as one of the most aggressive restrictions ever imposed on legal employment-based immigration.

For background, see Herman Legal Group’s analysis:

H1B $100,000 Filing Fee: What Every Employer Must Know

October–November 2025: Employers Begin Reassessing International Recruitment

As implementation guidance emerged, employers began evaluating the practical impact of the fee.

Many organizations concluded that a mandatory six-figure payment would fundamentally alter the economics for companies seeking to recruit or hire foreign talent.

Concerns were particularly acute among:

• healthcare systems recruiting physicians;
• universities recruiting researchers;
• engineering firms;
• AI and technology companies;
• startups;
• manufacturers with specialized workforce needs.

The issue quickly expanded beyond immigration law and became a workforce planning issue.

For many employers, the question was no longer:

“Can we hire international talent?”

Instead, the question became:

“Can we afford to?”

Late 2025: Lawsuits Are Filed Challenging the Fee

A coalition of states led by California filed suit challenging the legality of the $100,000 payment requirement, in a case that paralleled broader business opposition seen in a separate chamber lawsuit over executive immigration restrictions.

The states argued that:

• Congress never authorized the fee;
• the fee functioned as a tax;
• the Administration exceeded its statutory authority;
• the policy violated the Administrative Procedure Act;
• public institutions would suffer significant harm.

The complaint emphasized the impact on:

• public universities;
• healthcare systems;
• state agencies;
• educational institutions;
• research organizations.

The full complaint can be viewed here:

State of California v. Mullin – Complaint

HLG’s earlier coverage of the litigation can be found here:

Lawsuit Against Trump’s $100,000 H-1B Fee

Winter 2025–2026: National Debate Intensifies

As litigation proceeded, the fee became one of the most controversial aspects of the Administration’s broader employment-based immigration agenda.

Supporters argued:

• employers had become too dependent on foreign labor;
• the fee would encourage investment in U.S. workers;
• H-1B hiring should become more selective.

Critics argued:

• the fee operated as a de facto barrier to legal immigration;
• public institutions would struggle to recruit talent;
• healthcare and research sectors would be harmed;
• the Administration lacked legal authority to impose the payment.

The broader backlash also drew opposition from the Chamber of Commerce, which warned about the policy’s impact on employers and competitiveness.

Separate business groups, including the US Chamber, framed the measure as an unlawful burden on lawful hiring.

The debate increasingly focused on a fundamental question:

Could the President impose a six-figure payment requirement without Congress?

Early 2026: Briefing Focuses on Executive Authority

As the litigation developed, the dispute evolved into something larger than an H-1B case.

The central issue became:

What are the limits of presidential power in immigration law?

The states argued that:

• immigration authority is broad but not unlimited;
• Congress controls taxation;
• Congress controls immigration fee structures;
• the Executive Branch cannot create a new tax through proclamation.

The government argued that:

• INA §212(f) grants broad authority to restrict entry under a presidential proclamation;
• the fee was part of a lawful immigration restriction;
• courts should defer to presidential judgment in immigration matters.

The case increasingly became a test of competing visions of executive power, and it also tested the outer limits of the president’s authority to attach new burdens to entry restrictions.

June 8, 2026: Judge Sorokin Strikes Down the Fee

On June 8, 2026, Judge Leo T. Sorokin issued a major decision in favor of the states.

The court concluded that the Administration exceeded its authority.

Among the most important findings:

• the payment functioned as a tax;
• Congress had not authorized the tax;
• the policy violated the Administrative Procedure Act;
• the implementing agency actions should be vacated.

The court vacated the federal policy implementing the fee.

The opinion can be read here:

State of California v. Mullin – Memorandum and Order

The decision immediately became one of the most significant immigration rulings of 2026.

Summer 2026: Expected Appeal to the First Circuit

The next major milestone is likely to be an appeal.

Most observers expect the government to:

• file a notice of appeal;
• seek a stay;
• defend the fee before the First Circuit.

Several questions remain unresolved:

• Can the government continue enforcing the fee during appeal?
• Will the First Circuit affirm the ruling?
• Will the court narrow the ruling?
• Will the litigation reach the Supreme Court?

These questions may shape employer decisions for the remainder of 2026.

Late 2026–2027: Potential Supreme Court Review

If appellate courts disagree—or if the case is viewed as sufficiently important—the Supreme Court may ultimately intervene.

Issues likely to attract Supreme Court attention include:

• presidential authority;
• immigration power;
• taxing authority;
• administrative law;
• separation of powers.

If that occurs, the ultimate significance of the case may extend far beyond H-1B visas.

The Court may be asked to answer a question that will influence immigration policy for years to come:

Can a President fundamentally reshape legal immigration through executive action when Congress has not clearly authorized the change?

Why This Timeline Matters

The story of the $100,000 H-1B fee is not simply the story of a fee.

It is the story of an ongoing struggle over:

• legal immigration;
• workforce policy;
• executive authority;
• congressional power;
• the future of the American economy.

The Massachusetts decision is an important chapter.

But it is unlikely to be the final chapter.

The next chapter will likely be written in the First Circuit—and perhaps ultimately in the United States Supreme Court.

Key Players in the Lawsuit

Understanding who brought this case—and who stood to win or lose—helps explain why the litigation attracted national attention.

Although the dispute centered on the $100,000 H-1B payment requirement, the case was really about much larger issues involving executive power, congressional authority, legal immigration, workforce development, higher education, healthcare staffing, and the future of the U.S. economy.

The Plaintiffs: Twenty States Challenging the Fee

The lawsuit was led by California and Massachusetts, joined by a coalition of eighteen other states.

The states argued that the $100,000 H-1B payment requirement would cause direct harm to their economies, public institutions, and residents.

According to the complaint, state governments rely heavily on highly skilled workers in critical sectors such as:

• healthcare;
• higher education;
• scientific research;
• engineering;
• information technology;
• public administration.

The states also argued that public universities, teaching hospitals, research institutions, and state agencies would face significant recruiting difficulties if employers were required to pay an additional $100,000 to sponsor certain foreign professionals.

The states maintained that Congress never authorized the fee and that the Executive Branch exceeded its legal authority by imposing it.

Read the complaint here:

State of California v. Mullin – Complaint

The Defendants: The Trump Administration and Federal Immigration Agencies

The defendants included federal officials responsible for implementing and enforcing the policy.

Although media coverage often refers to the case as a challenge to the Trump Administration, the lawsuit specifically targeted the agencies and officials responsible for administering the H-1B program.

The challenged policy involved actions by:

• the Department of Homeland Security (DHS);
• U.S. Citizenship and Immigration Services (USCIS);
• other federal officials charged with implementing immigration policy.

The government argued that the President possessed broad authority under federal immigration law to impose the payment requirement as part of a lawful restriction on entry.

The Administration maintained that the fee was designed to protect American workers and discourage excessive reliance on foreign labor.

The Court: U.S. District Court for the District of Massachusetts

The case was heard in the United States District Court for the District of Massachusetts.

Federal district courts are trial-level courts that hear constitutional challenges, administrative law disputes, and lawsuits involving federal agencies.

Although district court decisions do not automatically bind courts nationwide as precedent, they can have nationwide practical effects—especially when agency actions are vacated under the Administrative Procedure Act.

That is one reason why this decision immediately attracted national attention.

The Judge: U.S. District Judge Leo T. Sorokin

Judge Leo T. Sorokin authored the June 8, 2026 opinion striking down the $100,000 H-1B payment requirement.

Judge Sorokin’s analysis focused heavily on questions of statutory authority and constitutional structure.

Rather than asking whether the fee was good policy, the court focused on whether Congress had authorized the Executive Branch to impose it.

That distinction became central to the decision.

The court ultimately concluded that the payment functioned as a tax and that Congress had not delegated authority to the Executive Branch to impose such a tax through presidential action.

Read the court’s opinion here:

State of California v. Mullin – Memorandum and Order

The Employers: The Real Parties in Interest

Although employers were not the named plaintiffs, they were among the groups most directly affected by the policy.

The fee created significant concerns for:

• technology companies;
• engineering firms;
• hospitals;
• universities;
• research institutions;
• healthcare systems;
• manufacturers;
• multinational corporations;
• startups.

Many employers argued that a mandatory $100,000 payment would fundamentally alter the economics of recruiting specialized talent from abroad.

For some organizations, the issue was not merely immigration policy—it was workforce planning.

The Foreign Professionals

The litigation also carried enormous consequences for highly skilled foreign professionals seeking employment opportunities in the United States.

Particularly affected were:

• physicians;
• engineers;
• scientists;
• researchers;
• software developers;
• artificial intelligence specialists;
• university faculty;
• healthcare professionals;
• multinational employees recruited from abroad.

Although many existing H-1B workers already in the United States were outside the primary scope of the fee, the policy threatened to affect future recruitment of foreign talent entering the United States through the H-1B system.

For many professionals abroad, the outcome of the litigation could determine whether prospective employers remained willing to sponsor them.

The Institutions with the Most at Stake

One of the most important—and often overlooked—aspects of the lawsuit was the role of public institutions.

The states repeatedly emphasized the impact on:

• public universities;
• teaching hospitals;
• medical schools;
• research centers;
• public school systems;
• state agencies.

These institutions often compete globally for talent and operate under budget constraints that make six-figure sponsorship costs difficult or impossible to absorb.

As a result, the litigation was not merely about business immigration.

It was also about healthcare access, scientific research, higher education, and economic competitiveness.

The Real Legal Question

At first glance, the case appeared to be about an H-1B fee.

In reality, the litigation centered on a much bigger question:

Can the Executive Branch impose a six-figure financial condition on participation in the H-1B program when Congress never expressly authorized it?

Judge Sorokin answered that question “no.”

The government’s appeal will likely ask higher courts to answer the same question differently.

The resolution of that dispute may ultimately shape not only the future of the H-1B program, but also the future limits of presidential power in immigration law.

 

 

Why Did the Court Say the $100,000 H-1B Payment Was a Tax?

The court’s tax analysis is one of the most important parts of the decision.

The Administration argued that the $100,000 requirement was a lawful immigration measure tied to the President’s authority to restrict entry of certain noncitizens under INA § 212(f) and INA § 215(a), justified in part by national security concerns. The government framed the payment as part of a restriction on entry designed to protect U.S. workers and prevent abuse of the H-1B program.

The court saw the issue differently.

Judge Sorokin emphasized that the payment did not make hiring H-1B workers illegal. Instead, it allowed employers to obtain access to the H-1B process if they paid $100,000. That made the payment resemble a tax rather than a penalty.

The court also rejected the government’s argument that the payment was not a tax because it was collected by DHS rather than the IRS. The court explained that the collecting agency does not determine whether a payment is a tax.

This point is especially important because the court relied on the Supreme Court’s recent tariff decision, Learning Resources, Inc. v. Trump, where the Court treated tariffs assessed by DHS as taxes for constitutional purposes.

That connection may become central on appeal.

Judge Sorokin’s reasoning suggests that the government cannot avoid the Constitution’s taxing limits simply by routing money through DHS or tying the payment to immigration enforcement.

For employers and high-skilled immigrants, the takeaway is clear:

The court did not merely say the fee was too high.

The court said the wrong branch of government imposed it.

Congress can tax. Congress can create immigration fees. Congress can redesign the H-1B program. But the President cannot simply create a six-figure payment obligation without statutory authorization.

That is why this case is bigger than H-1B.

Why Is This Ruling Bigger Than the H-1B Program?

Most news coverage will describe this as a ruling about the $100,000 H-1B fee.

That is accurate, but incomplete.

The larger issue is whether a president may use immigration authority to create massive economic barriers that Congress never enacted.

The Trump Administration relied heavily on INA § 212(f), a statute that allows the President to suspend or restrict entry of certain noncitizens when their entry would be detrimental to the interests of the United States. That statute was central to the Supreme Court’s travel-ban decision in Trump v. Hawaii.

But Judge Sorokin’s ruling draws a sharp line.

The President may have broad authority to restrict entry. But that does not automatically include authority to impose a new tax.

That distinction may become one of the most important immigration-law questions of 2026.

If the government can use § 212(f) to impose a $100,000 payment requirement on H-1B employers, what else could it impose?

• Could a future administration impose a $50,000 payment on F-1 students?
• Could it impose a $75,000 payment on employment-based immigrant visa applicants?
• Could it impose a massive supplemental charge on family-based visa cases?
• Could it impose special financial barriers on nationals of particular countries?

Judge Sorokin’s answer appears to be no, at least where the payment functions as a tax and Congress has not clearly authorized it.

That is why this ruling may become a template for future challenges to aggressive executive actions in legal immigration.

Does This Mean the Trump H-1B Crackdown Is Over?

No.

This is the most important practical point for H-1B workers and employers.

The court struck down the $100,000 fee policy. It did not invalidate every part of the Trump Administration’s skilled-immigration agenda.

Many other restrictions may remain alive, including:

• wage-weighted H-1B lottery selection;
• stricter review of specialty occupation eligibility;
• increased scrutiny of Level I wage positions;
• tougher employer-employee relationship analysis;
• more FDNS site visits;
• more Labor Condition Application audits;
• remote-work compliance investigations;
• increased consular review;
• social media screening;
• potential H-4 EAD restrictions;
• OPT and STEM OPT scrutiny;
• higher denial risk for staffing and third-party placement cases.

HLG has discussed these risks in detail in its coverage of the Trump 2026 H-1B crackdown and the broader war on H-1B in 2026.

The fee was dramatic because it was simple to understand. A $100,000 number gets attention.

But for many employers, the bigger long-term risk is not one fee. It is the slow conversion of the H-1B system into a more hostile adjudication environment.

Employers may still face more RFEs, more NOIDs, more site visits, more denials, more compliance exposure, and more uncertainty.

High-skilled immigrants should not interpret this ruling as a return to the pre-2025 H-1B system.

The better interpretation is this:

The courts may block some of the most aggressive executive actions, but the broader enforcement environment remains dangerous.

What Should Employers Do Right Now?

Employers should not panic. But they should also not become complacent.

The immediate employer strategy should be:

1. Review Any H-1B Cases Affected by the $100,000 Fee

Employers should identify whether they had any H-1B petitions delayed, abandoned, denied, or financially affected because of the payment requirement.

This includes:

• new consular H-1B petitions;
• petitions for workers outside the United States;
• cases involving beneficiaries without valid H-1B visas;
• filings where USCIS guidance created uncertainty;
• cases where business units stopped sponsorship because of cost.

2. Preserve Records for Possible Refund or Litigation Claims

If an employer paid the $100,000 fee, it should preserve:

• proof of payment;
• USCIS receipts;
• payment portal confirmations;
• internal emails discussing the fee;
• outside counsel communications;
• budget approvals;
• case strategy notes;
• any correspondence with USCIS, the State Department, or CBP.

Refund procedures are not yet clear. Employers that paid may need to pursue administrative refund requests or litigation depending on how the government responds.

3. Restart Sponsorship Planning Carefully

Some employers paused H-1B sponsorship because of the fee. Those employers should reassess.

The ruling may make H-1B sponsorship economically realistic again, especially for:

• startups;
• hospitals;
• universities;
• research institutions;
• public schools;
• small and mid-sized employers;
• nonprofit organizations;
• employers hiring recent graduates.

But sponsorship should restart with careful compliance planning.

4. Audit H-1B Compliance Now

The fee may be gone for now, but enforcement risk remains.

Employers should review:

• LCAs;
• wage levels;
• worksite locations;
• remote-work arrangements;
• public access files;
• job descriptions;
• degree requirements;
• third-party placement documents;
• supervision structures;
• amended petition triggers.

Employers should treat this ruling as an opportunity to rebuild stronger H-1B compliance systems, not as permission to relax.

5. Watch for Appeals and Agency Guidance

Employers should monitor:

• First Circuit filings;
• any motion for stay;
• USCIS policy alerts;
• State Department guidance;
• CBP guidance;
• DOL enforcement updates.

The most dangerous period in immigration law is often the period immediately after a major court order, when agencies are adjusting guidance and employers are trying to interpret incomplete information.

What Should H-1B Workers Do Right Now?

H-1B workers should understand what this ruling does and does not do.

The ruling does not cancel H-1B status.

It does not invalidate approved H-1B petitions.

It does not mean every employer will suddenly sponsor again.

It does not eliminate other risks in the H-1B system.

But it may remove a major financial obstacle that discouraged employers from filing new H-1B petitions.

H-1B workers should:

• confirm whether their employer paused or changed plans because of the fee;
• ask whether sponsorship strategy is being revisited;
• maintain lawful status;
• avoid international travel without understanding current visa and entry risks;
• preserve immigration records;
• consult immigration counsel before changing employers;
• evaluate backup options if their employer remains reluctant to sponsor.

Workers affected by layoffs should also review options such as H-1B transfer, change of status, B-1/B-2 bridge strategy, F-1 study, O-1, E-2, L-1, or permanent residence planning. HLG has addressed related strategy questions in its H-1B and employment immigration resources, including guidance on H-1B alternatives and the 2026 crackdown.

What Should F-1 Students and STEM OPT Workers Know?

For F-1 students, OPT workers, and STEM OPT workers, this ruling may be extremely important.

The $100,000 H-1B payment threatened to break the traditional pathway:

F-1 student → OPT → STEM OPT → H-1B → employment-based green card.

Many employers were unlikely to pay $100,000 to sponsor a recent graduate, even a highly talented one.

That risk was especially severe for:

• new graduates;
• entry-level software engineers;
• data analysts;
• AI researchers;
• engineers;
• financial analysts;
• healthcare professionals;
• university researchers;
• startup employees;
• workers at small and mid-sized companies.

With the fee vacated, some employers may become more willing to consider H-1B sponsorship again.

But F-1 students should not assume sponsorship is now easy.

The H-1B lottery remains competitive. Wage-weighted selection rules may still affect selection odds. USCIS may continue to scrutinize specialty occupation issues. Employers may remain cautious because of political and legal uncertainty.

Students should continue to protect every available option:

• maintain valid F-1 status;
• preserve OPT and STEM OPT compliance;
• track unemployment days;
• ensure accurate I-983 training plans;
• communicate carefully with DSOs;
• prepare early for H-1B registration;
• consider cap-exempt H-1B employers;
• explore O-1, EB-2 NIW, EB-1, J-1 waiver, L-1, or other options where appropriate.

HLG’s coverage of the new H-1B lottery rule for 2026–2027 remains important because the lottery system itself may still be changing even if the $100,000 fee has been struck down.

What Should Universities, Hospitals, and Research Institutions Know?

The Massachusetts case was not only about technology companies.

The states’ complaint emphasized the effect of the fee on public schools, universities, hospitals, medical facilities, and research institutions.

That point matters.

H-1B workers are not limited to Silicon Valley.

They include:

• physicians;
• medical residents;
• researchers;
• professors;
• postdoctoral fellows;
• teachers;
• engineers;
• data scientists;
• healthcare specialists;
• public-sector professionals.

The complaint argued that the $100,000 fee threatened access to education, healthcare, and research capacity, particularly in communities already facing staffing shortages.

For hospitals and healthcare systems, the ruling may preserve access to foreign-trained physicians, medical specialists, and researchers.

For universities, it may protect hiring of professors, postdocs, research staff, and other high-skilled employees.

For public schools, it may help preserve access to educators in hard-to-fill subject areas.

For rural communities, the decision may be especially important because employers in less wealthy regions often cannot absorb a $100,000 payment per worker.

These institutions should still prepare for continued scrutiny. Cap-exempt employers may have escaped some parts of the H-1B lottery problem, but they are not immune from USCIS adjudication trends, site visits, wage compliance obligations, or consular delays.

Richard Herman’s Analysis: The Court Rejected a Governing Theory, Not Just a Fee

The most important part of this decision is not the number $100,000.

The most important part is the court’s rejection of a governing theory.

The Trump Administration’s theory was essentially this:

Because the President has broad authority over the entry of noncitizens, the President can attach a massive payment requirement to entry through the H-1B system.

Judge Sorokin rejected that logic. The court declined to extend the same logic of entry restriction into tax-creating power.

The court’s reasoning suggests that immigration authority is not a blank check. Even where the President has broad authority over entry, that authority does not automatically include the power to tax, bypass notice-and-comment rulemaking, or override Congress’s detailed statutory framework.

That is a powerful limit.

For years, immigration lawyers have watched administrations of both parties use executive power to reshape immigration policy. Some executive actions expand access. Others restrict it. But the underlying question is increasingly the same:

Where did Congress authorize this?

That question may define immigration litigation in 2026.

The Supreme Court’s recent decisions limiting agency deference and scrutinizing executive economic authority make this question even more important. After Loper Bright Enterprises v. Raimondo, agencies can no longer rely on Chevron deference to defend aggressive statutory interpretations. After the tariff litigation referenced by Judge Sorokin, courts may be more skeptical of executive efforts to impose massive economic consequences without clear congressional authorization.

That is why this ruling could matter far beyond H-1B.

It may influence challenges to:

• new visa fees;
• immigration proclamations;
• travel restrictions;
• employment-based immigration limits;
• agency fee schedules;
• consular restrictions;
• nationality-based restrictions;
• future attempts to restrict legal immigration through executive action.

The legal question is no longer only whether the President has broad immigration authority.

The question is whether the particular action a proclamation imposes fits within authority Congress actually granted.

That is a much harder question for the government.

What Happens Next? Appeals, Refunds, Overseas Recruitment, and the Future of Skilled Immigration

The Massachusetts decision is a major setback for the Trump Administration’s effort to reshape the H-1B program.

But employers and foreign professionals should not assume the issue is resolved.

The litigation is entering a new phase, and some of the most important questions remain unanswered.

The immediate questions are:

• Will the government appeal?
• Can the Administration continue enforcing the fee during the appeal?
• Will employers receive refunds?
• Could Congress bring the fee back?
• Will the Administration pursue alternative restrictions?
• What does this mean for recruiting foreign talent?

These questions may ultimately prove more important than the district court’s ruling itself.

The First Battle: Will the Government Seek a Stay?

The most immediate issue is not the appeal.

It is whether the government can keep the fee alive while the appeal proceeds.

A stay would temporarily suspend the effect of Judge Sorokin’s ruling.

If a stay were granted:

• the government could potentially continue enforcing the fee;
• employers could again face uncertainty regarding overseas recruitment;
• the practical benefits of the decision could be delayed.

If a stay is denied:

• the fee remains unenforceable;
• employers may proceed without the six-figure payment requirement;
• the government must continue litigating from a weakened position.

For many employers, the stay litigation may be more important than the eventual appellate decision.

Will the Government Appeal?

Almost certainly.

The Administration devoted significant political and legal resources to the $100,000 H-1B payment requirement.

The fee was not merely a revenue-generating measure.

It was designed to change employer behavior.

The Administration’s stated objective was to reduce employer reliance on foreign labor and encourage investment in U.S. workers.

Because Judge Sorokin rejected the legal foundation of that approach, an appeal is highly likely.

The government will probably argue:

• INA §212(f) grants broad authority to restrict entry;
• the payment requirement was part of a lawful entry restriction;
• the district court improperly treated the payment as a tax;
• the states lacked standing;
• the court exceeded its authority by vacating the policy.

Those arguments will shape the next phase of the litigation.

Could the Supreme Court Ultimately Decide the Case?

Yes.

In fact, this case has several characteristics commonly associated with Supreme Court review.

It presents:

• a major separation-of-powers dispute;
• questions regarding presidential authority;
• issues involving federal taxation powers;
• nationwide economic consequences;
• significant immigration implications.

The Court may eventually need to answer a fundamental question:

Can a President use immigration authority to impose a six-figure financial condition that Congress never enacted?

That question reaches far beyond H-1B visas.

What Happens to Employers Who Already Paid?

One of the most immediate practical questions is whether employers will receive refunds.

At present, no refund process has been announced.

Several possibilities exist:

Voluntary Government Refunds

The government could refund the payments administratively.

Administrative Claims

Employers may need to submit refund requests.

Refund Litigation

Employers may be forced to pursue separate legal actions.

Congressional Action

Congress could establish a statutory refund process.

For now, employers should assume nothing.

Instead, they should preserve every relevant record.

What Documents Should Employers Preserve?

Any employer that paid the $100,000 fee should retain:

• payment confirmations;
• USCIS receipts;
• wire records;
• legal invoices;
• internal approvals;
• budget analyses;
• correspondence concerning the fee;
• recruiting records affected by the fee.

Those materials may become important if refund litigation develops.

The Employers Most Affected Were Often Recruiting From Abroad

One of the most misunderstood aspects of the $100,000 fee is who actually faced the greatest burden.

Many people assume the fee affected every H-1B filing.

That is inaccurate.

The fee generally targeted certain foreign nationals seeking initial H-1B entry who did not already possess H-1B status or a valid H-1B visa.

As a result, the employers most affected were often those seeking to recruit talent from outside the United States, including workers who were not US citizens and were applying from abroad.

The fee created obstacles for:

• international recruitment;
• overseas hiring;
• foreign professionals seeking initial H-1B entry;
• multinational companies transferring talent into U.S. operations through new H-1B sponsorship;
• universities recruiting researchers;
• hospitals recruiting physicians;
• engineering and technology firms seeking specialized expertise.

The fee therefore threatened the future pipeline of global talent entering the United States.

That may be where Judge Sorokin’s ruling has its greatest practical significance.

Why Universities and Hospitals Were So Concerned

The states’ complaint repeatedly emphasized the effect of the fee on public institutions.

Universities, research institutions, hospitals, and healthcare systems depend heavily on internationally recruited talent.

These institutions often hire:

• physicians;
• researchers;
• scientists;
• professors;
• postdoctoral fellows;
• engineers;
• educators.

Many public institutions simply could not absorb a six-figure payment for each newly recruited worker.

The fee therefore threatened not only immigration programs but also staffing, research, healthcare delivery, and educational services.

Judge Sorokin’s ruling may have its greatest long-term impact in these sectors.

Could the Administration Achieve the Same Goal Through Different Means?

Possibly.

This is one of the most important strategic questions moving forward.

The court struck down the fee.

The court did not prohibit the Administration from pursuing other policies designed to reduce H-1B usage.

Alternative approaches could include:

• increased site visits;
• stricter adjudications;
• additional Requests for Evidence;
• expanded compliance audits;
• higher prevailing wage requirements;
• revised eligibility standards;
• greater scrutiny of specialty occupation positions;
• enhanced consular review.

Employers should not assume that the broader policy objective has disappeared simply because one mechanism was invalidated.

Richard Herman’s Analysis: The Court Rejected a Theory of Presidential Power

The most important aspect of the Massachusetts decision is not the $100,000 number.

It is the court’s rejection of a broader theory of executive authority.

The Administration argued that its immigration powers included authority to impose a six-figure payment requirement on participation in the H-1B system.

Judge Sorokin disagreed.

The court’s reasoning suggests that even broad immigration authority has limits.

Congress may create taxes.

Congress may create fees.

Congress may redesign immigration programs.

But the Executive Branch cannot simply assume those powers without clear statutory authorization.

That principle could become increasingly important in future litigation involving immigration proclamations, visa restrictions, agency fee schedules, and other executive actions affecting legal immigration.

The broader significance of this case is therefore not about H-1B visas alone.

It is about who gets to make immigration policy in the United States—and how far presidential power extends when Congress has not clearly spoken.

The Fee May Be Dead. What Parts of the H-1B Crackdown Survive?

Why the Massachusetts Decision Is a Victory—But Not the End of the Story

Many employers and foreign professionals will read headlines about the Massachusetts ruling and conclude:

“The H-1B crackdown is over.”

That conclusion would be a mistake.

The $100,000 H-1B payment requirement was one of the most visible components of the Administration’s effort to reshape legal employment-based immigration.

But it was never the only component.

In many respects, it may not even have been the most significant one.

The fee generated headlines because it was dramatic.

The more consequential changes may be the ones that receive far less public attention:

• adjudication standards;
• compliance investigations;
• site visits;
• prevailing wage enforcement;
• consular scrutiny;
• social media vetting;
• data-driven fraud detection;
• restrictions on dependent work authorization;
• challenges to OPT and STEM OPT;
• narrowing interpretations of “specialty occupation.”

These measures can affect thousands more cases than a single fee provision.

As a result, employers and high-skilled immigrants should view the Massachusetts decision as an important victory—but not a return to the pre-2025 immigration landscape.

Understanding the Bigger Strategy

The $100,000 fee was never an isolated policy.

It was part of a broader philosophy.

The central premise was simple:

Rather than eliminating the H-1B program outright, make participation more difficult, more expensive, more uncertain, and more risky.

If employers face enough obstacles, many will simply stop sponsoring foreign workers.

That objective can be pursued in many different ways.

A fee is only one tool.

The Massachusetts ruling eliminated one tool.

Many others remain available.

Restriction #1: Increased H-1B Compliance Enforcement

Status: Very Much Alive

If there is one area where employers should expect continued pressure, it is compliance.

Federal agencies already possess extensive authority to investigate:

• wage compliance;
• Labor Condition Applications;
• worksite locations;
• remote work arrangements;
• public access files;
• specialty occupation requirements;
• employer-employee relationships.

Unlike the $100,000 fee, these enforcement activities rest on longstanding statutory authority.

That makes them far more difficult to challenge.

Employers should anticipate continued growth in:

• FDNS site visits;
• Department of Labor investigations;
• document requests;
• compliance audits;
• anti-fraud reviews.

In fact, one unintended consequence of the Massachusetts ruling may be increased reliance on these existing enforcement tools.

If one restriction disappears, agencies often shift resources elsewhere.

Restriction #2: More Requests for Evidence and Notices of Intent to Deny

Status: Alive and Difficult to Challenge

Many employers remember the first Trump Administration’s heavy reliance on RFEs and NOIDs.

The same pattern could continue.

Common areas of scrutiny include:

• specialty occupation eligibility;
• Level I wage positions;
• degree requirements;
• third-party placements;
• employer control;
• maintenance of status;
• availability of work.

Unlike the $100,000 fee, these issues arise through case adjudications rather than broad policy announcements.

That makes them harder to challenge in court.

For employers, the practical lesson is simple:

Documentation quality matters more than ever.

Restriction #3: Increased Scrutiny of Level I Wage Cases

Status: Likely to Continue

One recurring theme of recent H-1B policy initiatives has been skepticism toward lower-wage positions.

The Administration has repeatedly argued that employers should prioritize highly compensated workers.

Even without the $100,000 fee, employers should expect continued scrutiny of:

• entry-level positions;
• recent graduates;
• trainee roles;
• junior software engineers;
• analyst positions.

Employers relying heavily on Level I wages should prepare for heightened review.

Restriction #4: Consular Scrutiny

Status: Growing Importance

One of the most significant trends in immigration law is the increasing importance of consular processing.

More scrutiny now occurs outside the United States than inside it.

Consular officers possess substantial discretion and often review:

• employment history;
• educational background;
• social media activity;
• prior immigration filings;
• consistency of information across applications.

The Massachusetts decision does not affect consular authority.

As a result, employers recruiting talent from abroad should continue preparing for rigorous visa processing.

This is particularly important because the $100,000 fee itself primarily affected workers outside the United States.

Even though the fee may be gone, the broader scrutiny of overseas applicants remains.

Restriction #5: Social Media Vetting and Digital Screening

Status: Expanding

One of the most underreported developments in immigration enforcement is the growth of digital screening.

Government agencies increasingly examine:

• social media accounts;
• public online activity;
• professional profiles;
• digital footprints;
• prior statements;
• inconsistencies between online information and immigration filings.

This trend is unlikely to disappear regardless of the outcome of the H-1B fee litigation.

For high-skilled immigrants, maintaining consistency and credibility across all platforms is becoming increasingly important.

Restriction #6: H-4 EAD Vulnerability

Status: Potential Future Target

Although the Administration has not yet eliminated H-4 employment authorization, the issue remains politically contentious.

Families relying on H-4 EAD should understand:

• the Massachusetts decision does not affect H-4 EAD;
• future regulatory action remains possible;
• litigation could arise if restrictions are proposed.

For many H-1B families, dependent work authorization remains one of the most important unresolved issues.

Restriction #7: OPT and STEM OPT

Status: Significant Long-Term Risk

For employers, universities, and international students, OPT may be more important than H-1B.

OPT serves as the primary bridge between:

• U.S. education;
• U.S. employment;
• long-term immigration sponsorship.

Various policy organizations associated with immigration restriction have criticized OPT and STEM OPT for years.

Future efforts may focus on:

• reducing eligibility;
• shortening authorization periods;
• increasing employer obligations;
• narrowing STEM categories.

The Massachusetts ruling provides no protection against those efforts.

Students should therefore avoid assuming that today’s victory resolves tomorrow’s challenges.

Restriction #8: AI-Driven Fraud Detection and Case Analytics

Status: Likely Expansion Area

This may become one of the most important immigration developments of the next decade.

Federal agencies increasingly possess the ability to analyze:

• filing patterns;
• employer behavior;
• wage data;
• geographic trends;
• educational credentials;
• prior applications.

The future of immigration enforcement may involve less reliance on broad public restrictions and more reliance on targeted data analysis.

In other words:

The next major challenge may not be a public proclamation.

It may be an algorithm.

Employers should prepare accordingly.

What Restriction Is Most Vulnerable to Future Litigation?

The Massachusetts ruling provides a clue.

Judge Sorokin repeatedly focused on a central question:

Where did Congress authorize this?

That question is likely to shape future lawsuits.

Policies appear most vulnerable when they involve:

• major economic consequences;
• broad executive action;
• limited congressional authorization;
• significant departures from existing statutory frameworks.

Future litigation may focus on:

• executive proclamations;
• agency fee structures;
• broad regulatory restrictions;
• nationwide immigration policies.

The post-Loper Bright environment makes these challenges more attractive.

Courts are increasingly willing to independently interpret statutes rather than defer to agency interpretations.

Richard Herman’s Prediction #1: The Administration Will Shift From Fees to Scrutiny

The easiest prediction is that enforcement pressure will not disappear.

Instead, it may migrate.

Expect more focus on:

• adjudications;
• compliance;
• fraud detection;
• worksite investigations;
• consular processing.

The objective remains the same.

Only the mechanism changes.

Richard Herman’s Prediction #2: The Next Major Litigation Will Focus on Executive Authority

The Massachusetts case is part of a larger trend.

Increasingly, courts are asking:

How much immigration authority does the Executive Branch actually possess?

That question is likely to reappear in future disputes involving:

• visa restrictions;
• immigration proclamations;
• agency guidance;
• enforcement policies.

The answer will shape immigration law for years to come.

Richard Herman’s Prediction #3: Universities and Hospitals Will Become More Active Litigants

One overlooked aspect of the Massachusetts case is the role played by public institutions.

Universities, healthcare systems, and research institutions have become increasingly dependent on international talent.

As restrictions increase, these institutions are becoming more willing to challenge federal immigration policies in court.

That trend is likely to continue.

Future lawsuits may increasingly be driven not by technology companies, but by hospitals, medical schools, research centers, and state governments.

Richard Herman’s Prediction #4: The Supreme Court Will Continue Demanding Clear Congressional Authorization

This may be the most important prediction.

The Supreme Court’s recent jurisprudence reflects growing skepticism toward expansive executive and agency power.

The Court increasingly asks:

• What did Congress authorize?
• Where is the statutory language?
• Did the agency exceed its delegated authority?

The Massachusetts decision fits squarely within that broader judicial movement.

Employers and high-skilled immigrants should expect these questions to shape immigration litigation throughout 2026 and 2027.

Bottom Line: The Fee May Be Gone, But the Battle Over Skilled Immigration Is Just Beginning

The Massachusetts ruling is a major victory for employers, universities, hospitals, research institutions, and foreign professionals.

It removes one of the most aggressive barriers ever imposed on participation in the H-1B system.

But the larger debate continues.

The future of skilled immigration will likely be shaped not by a single fee, but by a series of battles involving:

• executive authority;
• agency power;
• compliance enforcement;
• technology-driven screening;
• employer obligations;
• congressional action.

For employers and high-skilled immigrants, the lesson is clear:

Celebrate the victory.

But do not mistake it for the final chapter.

The next chapter is already being written.

For Part 4, I would move into a powerful FAQ/AEO section with 30–40 real-world questions that employers, H-1B workers, recruiters, F-1 students, universities, hospitals, and foreign professionals are asking right now, optimized specifically for AI Overviews, ChatGPT, Gemini, Claude, Perplexity, and featured snippets.

Frequently Asked Questions About the Massachusetts H-1B Fee Decision

Answers for Employers, H-1B Workers, Universities, Hospitals, Recruiters, and Foreign Professionals

One reason this case is so important is that it affects multiple audiences simultaneously.

The Massachusetts decision impacts:

• employers recruiting talent from abroad;
• multinational corporations;
• universities;
• hospitals;
• physicians;
• researchers;
• H-1B workers;
• future H-1B applicants;
• foreign professionals considering U.S. employment.

Below are the questions we are already hearing from employers and immigrants following Judge Sorokin’s ruling.

Is the $100,000 H-1B Fee Still in Effect?

At the moment, no.

Judge Sorokin vacated the federal policy implementing the $100,000 H-1B payment requirement.

Unless a higher court issues a stay or reverses the decision, the fee currently cannot be enforced.

However, employers should continue monitoring developments because the government is expected to appeal.

---

Does This Decision Apply Nationwide?

Most likely, yes.

The court vacated the agency action rather than issuing relief limited solely to the plaintiff states.

That means the ruling is potentially nationwide in effect.

However, future appellate proceedings could alter the practical impact of the decision.

---

Can the Government Appeal?

Yes.

An appeal is highly likely.

The government may seek review before the U.S. Court of Appeals for the First Circuit and potentially the Supreme Court.

---

Can the Government Continue Collecting the Fee During the Appeal?

Possibly.

The answer depends on whether the government obtains a stay.

If no stay is granted, the fee remains unenforceable while the appeal proceeds.

If a stay is granted, enforcement could potentially resume during litigation.

---

Could the Supreme Court Reverse This Decision?

Yes.

No district court ruling is final until appellate review is complete.

The Supreme Court could:

• decline review;
• affirm the ruling;
• reverse the ruling;
• partially modify the ruling.

At this stage, the ultimate outcome remains uncertain.

---

Does This Decision Affect Existing H-1B Workers?

Generally, existing H-1B workers were not the primary targets of the $100,000 fee.

Most existing H-1B workers already in the United States remained outside the fee’s core scope.

The ruling primarily affects future recruitment and sponsorship decisions involving workers who would otherwise have been subject to the payment requirement.

---

Does This Decision Affect H-1B Extensions?

Not directly.

The litigation concerns the legality of the $100,000 payment requirement.

It does not change ordinary H-1B extension procedures.

Employers must still comply with all existing H-1B rules and requirements.

---

Does This Decision Affect H-1B Transfers?

Generally, no.

Most H-1B portability cases involving workers already in H-1B status were not the primary focus of the $100,000 payment requirement.

The ruling therefore has a greater impact on overseas recruitment than on ordinary H-1B transfers.

---

Does This Decision Affect Workers Abroad Seeking Initial H-1B Entry?

Yes.

These workers were among the individuals most directly affected by the fee.

The Massachusetts ruling may therefore have its greatest practical impact on future international recruitment.

---

Does This Help Employers Recruit Overseas Talent?

Potentially, yes.

A six-figure government payment dramatically altered the economics of international hiring.

Without the fee, employers may be more willing to recruit:

• engineers;
• physicians;
• researchers;
• scientists;
• AI specialists;
• technology professionals;
• educators.

The decision may therefore improve access to global talent.

---

What Does This Mean for Universities?

Universities were among the institutions most concerned about the fee.

Many universities rely on internationally recruited:

• professors;
• researchers;
• postdoctoral fellows;
• scientists;
• specialized educators.

The ruling may help preserve access to that talent pipeline.

---

What Does This Mean for Hospitals and Healthcare Systems?

Hospitals frequently recruit physicians, researchers, and medical specialists from abroad.

The fee threatened to increase the cost of recruitment significantly.

The Massachusetts ruling may therefore help hospitals address physician shortages and workforce needs more effectively.

---

What Does This Mean for Medical Residents and Physicians?

For internationally trained physicians, the decision removes one significant obstacle that could have affected future recruitment and sponsorship.

However, physician immigration remains subject to:

• visa requirements;
• licensing requirements;
• J-1 waiver issues;
• H-1B requirements;
• green card backlogs.

The ruling helps, but it does not eliminate those challenges.

---

Does This Affect F-1 Students?

Indirectly.

The fee generally targeted new overseas recruitment rather than ordinary change-of-status cases within the United States.

However, a six-figure payment requirement would likely have discouraged some employers from engaging in long-term sponsorship planning.

Removing that barrier may improve employer willingness to consider future sponsorship opportunities.

---

Does This Affect OPT or STEM OPT?

No.

The Massachusetts decision concerns the H-1B fee.

It does not change OPT or STEM OPT rules.

Students should continue complying with all OPT and STEM OPT requirements.

---

Does This Affect H-4 EAD?

No.

The ruling does not address H-4 employment authorization.

Any future changes involving H-4 EAD would require separate legal or regulatory action.

---

Could Congress Bring Back the Fee?

Potentially.

The court ruled that the Executive Branch lacked authority to impose the fee on its own.

The court did not hold that Congress lacks authority to enact such legislation.

Whether Congress would do so is a separate political question.

---

Could the Administration Try a Different Approach?

Yes.

Even if the fee ultimately remains invalidated, the Administration could pursue other policies affecting the H-1B program.

Examples might include:

• increased compliance enforcement;
• stricter adjudications;
• additional audits;
• revised eligibility standards;
• expanded investigations.

Employers should continue monitoring broader policy developments.

---

Does This Mean the H-1B Crackdown Is Over?

No.

This is one of the most important misconceptions surrounding the ruling.

The court invalidated a particular fee policy.

The court did not invalidate every aspect of the Administration’s skilled-immigration agenda.

Many other restrictions and enforcement initiatives remain active.

---

What Should Employers Do Right Now?

Employers should:

• monitor appeals;
• preserve documentation;
• review recruiting plans;
• evaluate workforce needs;
• strengthen compliance systems;
• consult experienced immigration counsel regarding pending cases.

The current environment remains highly dynamic.

---

What Should Foreign Professionals Do Right Now?

Foreign professionals should:

• stay informed about litigation developments;
• maintain valid immigration status;
• preserve immigration records;
• communicate with employers regarding sponsorship plans;
• obtain individualized legal advice before making significant immigration decisions.

---

What Should Universities and Hospitals Do Right Now?

Universities and healthcare institutions should:

• evaluate future recruitment needs;
• monitor appellate developments;
• preserve records related to affected hiring decisions;
• continue workforce planning;
• prepare for possible policy changes during the appeals process.

---

What Happens If the Government Loses the Appeal?

If the government ultimately loses:

• the fee remains invalidated;
• employers avoid the six-figure payment requirement;
• future administrations may face greater limits on similar executive actions;
• the decision could influence future immigration litigation involving executive authority.

---

What Happens If the Government Wins the Appeal?

If the government ultimately prevails:

• the fee could potentially return;
• employers may again face significant recruitment costs;
• future hiring decisions could be affected;
• additional litigation may still occur depending on the scope of the appellate ruling.

---

Why Is This Case Important Beyond H-1B Visas?

Because the case is ultimately about power.

Specifically:

Who has authority to reshape legal immigration?

Congress?

The President?

Federal agencies?

The Massachusetts decision suggests that even broad immigration authority has limits.

That principle could influence future disputes involving:

• visa restrictions;
• immigration fees;
• executive proclamations;
• agency regulations;
• employment-based immigration policies.

For that reason, this case may ultimately become one of the most important immigration decisions of 2026.

Final FAQ Takeaway

For now, employers, universities, hospitals, researchers, physicians, and foreign professionals can view the Massachusetts decision as an important victory.

But it is not the final word.

The appeals process is just beginning.

The broader debate over skilled immigration continues.

And the ultimate significance of the case may extend far beyond the $100,000 fee itself.

The case may help define the limits of executive power in immigration law for years to come.

What Comes Next? Richard Herman’s Predictions, Strategic Lessons, Resources, and Final Takeaways

The Massachusetts Decision Is a Major Victory—But It Is Not the End of the Story

The June 8, 2026 decision striking down the Trump Administration’s $100,000 H-1B payment requirement will likely be remembered as one of the most important employment-based immigration rulings of the year.

For employers, universities, hospitals, research institutions, and foreign professionals, the ruling removes what may have been the single most aggressive financial barrier ever imposed on participation in the H-1B program.

But the most important lesson from this case is not about a fee.

It is about power.

Specifically:

How much authority does a President possess to reshape legal immigration without Congress?

Judge Sorokin’s answer was clear:

The Executive Branch may possess broad immigration authority, but that authority is not unlimited.

That conclusion could have consequences far beyond the H-1B program.

The next several months will determine whether the decision remains an important district court ruling—or becomes a landmark appellate precedent.

Richard Herman’s Predictions for 2026 and 2027

Based on current litigation trends, recent Supreme Court decisions, and the Administration’s broader immigration agenda, several developments appear likely.

Prediction #1: The Government Will Appeal Quickly

The Administration invested significant political capital in the $100,000 H-1B payment requirement.

Because the fee was designed to influence employer behavior nationwide, the government is unlikely to abandon it without a fight.

Employers should expect:

• a notice of appeal;
• expedited briefing requests;
• motions seeking to preserve the fee;
• continued public defense of the policy.

The legal battle has probably entered a new phase rather than ended.

Prediction #2: Stay Litigation May Matter More Than the Appeal

Most employers focus on who eventually wins.

The more immediate question may be:

Can the government keep the fee alive during the appeal?

That issue could affect hiring decisions long before the First Circuit reaches a final decision.

For employers actively recruiting foreign talent, stay proceedings may prove more consequential than the ultimate merits ruling.

Prediction #3: Refund Litigation Is Coming

One of the next major questions will involve money already paid.

Even if the number of employers affected was relatively small, the sums involved are significant.

Questions likely to arise include:

• Must the government issue refunds?
• Will refunds be automatic?
• Will separate claims be required?
• Can employers recover interest?
• What happens if the government refuses?

Future litigation may focus less on the legality of the fee and more on recovery of funds already collected.

Prediction #4: Future Challenges Will Focus on Executive Authority

This may be the most important long-term development.

For years, immigration litigation often focused on policy.

Increasingly, litigation focuses on authority.

The question is no longer merely:

“Is this good policy?”

The question increasingly becomes:

“Did Congress authorize this?”

That shift is visible throughout modern administrative law.

The Massachusetts H-1B case fits squarely within that trend.

Future lawsuits involving:

• visa restrictions;
• immigration proclamations;
• agency guidance;
• fee structures;
• immigration regulations;

may increasingly turn on questions of statutory authority.

Prediction #5: The Supreme Court Will Continue Demanding Clear Congressional Authorization

Recent Supreme Court decisions reflect growing skepticism toward expansive executive and agency power.

Courts increasingly ask:

• What did Congress authorize?
• Where is the statutory language?
• Did the government exceed delegated authority?

Employers and foreign professionals should expect those questions to shape immigration litigation throughout 2026 and 2027.

Prediction #6: Compliance Enforcement Will Expand

The Massachusetts ruling eliminates one tool.

It does not eliminate the government’s broader policy objectives.

Historically, when one enforcement mechanism becomes unavailable, agencies often emphasize others.

Employers should anticipate continued focus on:

• FDNS site visits;
• Labor Condition Application compliance;
• worksite verification;
• wage compliance;
• Requests for Evidence;
• Notices of Intent to Deny;
• anti-fraud investigations.

The most successful employers will be those that treat compliance as a strategic investment rather than a regulatory obligation.

The Bigger Story Most Commentators Are Missing

Most reporting has focused on the number:

$100,000.

That is understandable.

It is dramatic.

It generates headlines.

But the deeper significance of the case lies elsewhere.

The Massachusetts decision may signal a growing judicial reluctance to permit major immigration policy changes through unilateral executive action.

For decades, presidents of both parties have relied heavily on executive authority to shape immigration policy.

Courts increasingly appear willing to ask:

Where are the limits?

That question could become one of the defining legal issues of modern immigration law.

What Employers Should Do During the Next 12 Months

Employers should not assume stability.

The H-1B landscape remains highly dynamic.

Practical recommendations include:

Monitor Appeals Closely

The First Circuit may significantly affect the future of the fee.

Preserve Records

Especially if the fee affected hiring decisions or payments.

Reevaluate International Recruitment

The economics of overseas recruitment may have changed significantly.

Strengthen Compliance Programs

Expect continued scrutiny regardless of the fee’s fate.

Review Workforce Planning

Particularly for positions requiring specialized skills that may be difficult to fill domestically.

Consult Immigration Counsel Early

Strategic planning is increasingly important in a rapidly changing environment.

What Foreign Professionals Should Do During the Next 12 Months

Foreign professionals should avoid overreacting to either headlines or litigation.

The decision is important.

But it does not eliminate uncertainty.

Recommended steps include:

Maintain Status Carefully

Compliance remains critical.

Preserve Immigration Records

Keep copies of approvals, filings, and supporting documentation.

Follow Litigation Developments

Appellate decisions may alter the legal landscape.

Continue Long-Term Planning

Green card strategies, career planning, and alternative visa options remain important.

Seek Individualized Advice

The impact of policy changes varies significantly based on individual circumstances.

What Universities and Hospitals Should Do

Universities and healthcare institutions should view the ruling as an opportunity to reassess workforce planning.

Many institutions delayed or reconsidered recruitment because of the fee.

Those institutions may now wish to revisit:

• physician recruitment;
• faculty hiring;
• postdoctoral hiring;
• research staffing;
• specialized healthcare positions.

At the same time, compliance and planning remain essential because other restrictions and enforcement initiatives continue.

Key Resources

Court Documents

Massachusetts Federal Court Order:

State of California v. Mullin – Memorandum and Order

Complaint:

State of California v. Mullin – Complaint

---

Herman Legal Group Resources

Background on the Fee:

H1B $100,000 Filing Fee: What Every Employer Must Know

The Lawsuit Challenging the Fee:

Lawsuit Against Trump’s $100,000 H-1B Fee

Broader H-1B Restrictions:

Navigating Trump’s 2026 H-1B Crackdown

The Future of the H-1B Program:

Trump’s War on H-1B in 2026

H-1B Lottery Changes:

Understanding the New H-1B Lottery Rule for 2026–2027

---

Government Resources

USCIS H-1B Information:

https://www.uscis.gov/working-in-the-united-states/h-1b-specialty-occupations

USCIS H-1B Cap Information:

https://www.uscis.gov/working-in-the-united-states/h-1b-specialty-occupations/h-1b-cap-season

Department of Labor Labor Condition Application Information:

https://www.dol.gov/agencies/eta/foreign-labor/programs/h-1b

Final Thoughts

The Massachusetts court’s decision striking down the $100,000 H-1B payment requirement represents an important victory for employers, universities, hospitals, researchers, physicians, and foreign professionals.

But the most important question raised by the case is not whether a particular fee survives.

It is whether the Executive Branch may fundamentally reshape legal immigration without clear congressional authorization.

That question is likely to remain at the center of immigration litigation for years to come.

The appeals process is only beginning.

The broader debate over the future of skilled immigration is far from settled.

And the ultimate impact of this case may extend well beyond the H-1B program itself.

Need Help Navigating the Rapidly Changing H-1B Landscape?

The H-1B program is undergoing some of the most significant legal and policy changes in decades.

Whether you are:

• an employer recruiting international talent;
• an H-1B professional;
• an international physician;
• a university researcher;
• a startup founder;
• an F-1 student planning for future sponsorship;

strategic planning has never been more important.

The immigration lawyers at Herman Legal Group closely monitor federal litigation, USCIS policy changes, Department of Labor enforcement trends, and developments affecting high-skilled immigration.

If you have questions about H-1B sponsorship, compliance, recruitment, work visas, or employment-based green cards, schedule a consultation with Richard Herman or an experienced Herman Legal Group attorney to discuss your options and develop a strategy tailored to your circumstances.

Contact Richard at +1-216-696-6170 or schedule your consultation online.

 

Rhode Island Court Strikes Down USCIS Benefits Freeze: What It Means for Your Green Card, Work Permit, Citizenship, and Asylum Case

Court challenges to federal benefit restrictions increasingly require close reading of the statute rather than assumed deference to the agency. Our analysis of Loper Bright and immigration law explains why that shift matters across immigration cases.

For the related ruling addressing broader agency holds, see our explanation of the court order vacating USCIS immigration-hold policies.

Quick Answers: What Immigrants Need to Know: Rhode Island Court Strikes Down USCIS Benefits Freeze

Did the federal court strike down USCIS’s nationality-based adjudication freeze?

Yes. A federal judge in Rhode Island vacated four USCIS policies that delayed or suspended immigration benefits for nationals of approximately 39 countries.

Does this decision eliminate the travel bans?

No. The ruling primarily affects USCIS benefit adjudications, not the underlying travel-ban proclamations.

Could this affect my green card application?

Possibly. Applicants whose cases were delayed because of nationality-based review procedures may benefit from the decision.

Does this affect work permits?

Potentially yes. The court struck down the Benefits Hold Policy, which reportedly affected some employment authorization applications.

Does this affect citizenship applications?

Potentially yes. Naturalization applicants were among the groups affected by the challenged policies.

Does this affect asylum applications?

Yes. The court specifically vacated the Global Asylum Hold Policy.

Can USCIS still conduct security checks?

Yes. The decision does not eliminate lawful background investigations or security screening.

Will the government appeal?

Almost certainly.

Does this decision guarantee approval?

No. The ruling requires lawful adjudication, not automatic approval.

What is the most important takeaway?

USCIS generally cannot place immigrants into indefinite legal limbo because of their nationality.

Key Takeaways

• A federal court vacated four USCIS policies affecting nationals from approximately 39 countries.
• The policies allegedly delayed green cards, work permits, asylum cases, citizenship applications, and other immigration benefits.
• Judge McConnell concluded USCIS exceeded its authority.
• The court repeatedly criticized nationality-based adjudication holds.
• The decision does not invalidate the travel bans themselves.
• The government is expected to appeal.
• The ruling may influence future mandamus and immigration-delay litigation.
• Applicants from affected countries should monitor their cases carefully.
• The decision reinforces the principle that USCIS must generally decide cases according to standards established by Congress.
• This may become one of the most significant immigration administrative-law decisions of 2026.

 

 

“They Did Everything the Government Asked Them to Do”

Imagine following every immigration rule.

You complete the forms.

You pay the filing fees.

You attend biometrics.

You pass the background checks.

You respond to every USCIS request.

You wait your turn.

Then nothing happens.

Not for weeks.

Not for months.

Perhaps not ever.

That, according to a federal judge, is exactly what happened to thousands of immigrants whose cases were caught in a little-known USCIS policy that effectively froze immigration benefits for nationals of dozens of countries during the Trump Administration’s expanded travel-ban era.

In a landmark June 2026 decision, Chief Judge John J. McConnell Jr. of the United States District Court for the District of Rhode Island repeatedly emphasized that the plaintiffs were not attempting to bypass the immigration system.

They were trying to use it.

They were, in the court’s words, people who had followed the process, applied for immigration benefits through lawful channels, and found themselves “stuck waiting, for months on end” because USCIS refused to make decisions on their applications.

The court described many of these immigrants as individuals who had done what American immigration law encourages people to do:

get in line, follow the rules, and seek immigration benefits through legal processes.

Yet according to the court, USCIS imposed policies that left many applicants in an “indeterminate legal limbo” based largely on their nationality rather than their individual circumstances.

The result was a system where immigrants were neither approved nor denied.

Instead, they were simply left waiting.

Does This Decision Affect My Immigration Case?

Possibly.

If you are from one of the countries affected by the Trump Administration’s 2025 and 2026 travel restrictions, and your immigration case has been delayed, frozen, subjected to unusual scrutiny, or left pending without explanation, this decision could directly affect you.

On June 5, 2026, Judge McConnell issued a sweeping 135-page opinion in Dorcas International Institute of Rhode Island v. USCIS, striking down four USCIS policies that had suspended, delayed, or re-reviewed immigration benefits for nationals of approximately 39 countries.

The court vacated:

• The Benefits Hold Policy
• The Global Asylum Hold Policy
• The Comprehensive Re-Review Policy
• The Country-Specific Factors Policy

These policies affected applications involving:

• Green cards (I-485 Adjustment of Status)
• Work permits (I-765 Employment Authorization)
• Citizenship (N-400 Naturalization)
• Asylum and humanitarian benefits
• Previously approved immigration benefits

The court concluded that USCIS exceeded its authority and unlawfully imposed nationality-based restrictions that Congress never authorized.

For many immigrants, the practical question is simple:

Can USCIS refuse to decide my case because of where I was born?

The Rhode Island court’s answer was no.

Why This Decision Matters

Most news coverage has described this as a travel-ban case.

That description is incomplete.

The travel bans primarily concerned people attempting to enter the United States.

This case concerns something different.

It concerns immigrants who were already here.

People who:

• already had lawful status,
• already filed applications,
• already paid filing fees,
• already passed background checks,
• already waited in line.

Many of these individuals were not trying to enter the United States.

They were trying to become permanent residents.

Or citizens.

Or obtain permission to work.

Or receive a decision on an asylum claim.

The court found that USCIS effectively stopped processing many of these applications because of the applicants’ countries of origin.

That is why this case could become one of the most important immigration decisions of 2026.

It is not simply about travel bans.

It is about whether the government may leave immigrants in permanent bureaucratic limbo after they have done everything the law requires.

Read the Original Sources Yourself

One reason this case is so important is that the court’s opinion is unusually detailed and unusually critical of USCIS’s conduct.

Federal Court Opinion (135 Pages)

The full opinion can be read here:

https://democracyforward.org/wp-content/uploads/2026/06/16112511402.pdf

Federal Complaint

The lawsuit challenging these policies can be read here:

https://democracyforward.org/wp-content/uploads/2026/03/26-cv-132-Dorcas-et-al-v-USCIS-et-al-ECF-1-Complaint-with-attachments.pdf

Democracy Forward Case Page

https://democracyforward.org/work/legal/challenging-unlawful-policies-targeting-immigrants-based-on-country-of-origin/

National Media Coverage

Reuters: https://www.reuters.com/world/us-judge-invalidates-trump-policies-targeting-immigrants-39-countries-2026-06-05/

The Hill: https://thehill.com/regulation/court-battles/5912086-immigration-applications-trump-policies-vacated/

Wall Street Journal: https://www.wsj.com/politics/policy/judge-strikes-down-trump-administration-freeze-on-immigration-benefits-a21a272a

CBS News: https://www.cbsnews.com/news/trump-legal-immigration-cases-judge-blocks/

The Question Every Immigrant Is Asking

The question is not:

“What did the judge say?”

The question is:

“What does this mean for me?”

That is exactly what this guide will answer.

In the sections that follow, we will explain:

• What USCIS actually did;
• Which countries were targeted;
• Which immigration benefits were frozen;
• Why the administration claimed these policies were necessary;
• Why the court rejected those arguments;
• What happens next;
• Whether the government is likely to appeal;
• And most importantly, how this decision could affect your green card, work permit, citizenship, asylum, or other immigration case.

What USCIS Actually Did: The Four Policies the Federal Court Struck Down

To understand why the Rhode Island decision is so important, you first need to understand what USCIS was actually doing.

Many immigrants heard about the travel bans.

Far fewer heard about the internal USCIS policies that followed.

Yet these internal policies may have affected more people than the travel bans themselves because they impacted immigrants who were already living in the United States and already had cases pending before USCIS.

According to the federal complaint, USCIS created a system that subjected nationals of designated countries to special restrictions, special vetting, special review procedures, and, in many cases, complete adjudication freezes.

The government argued these measures were necessary for national security.

Judge McConnell disagreed.

The court ultimately vacated four separate USCIS policies.

Each policy operated differently.

Each affected different categories of immigrants.

And each raises different questions for people wondering whether their own immigration case may have been impacted.

Policy #1: The Benefits Hold Policy

The Policy That Froze Immigration Cases

This was the policy that most directly affected ordinary immigrants.

The Benefits Hold Policy authorized USCIS to suspend adjudication of immigration benefit requests filed by nationals of designated countries.

In plain English, USCIS could receive an application, process the filing fee, collect biometrics, conduct security checks—and then stop.

No approval.

No denial.

No timeline.

No meaningful explanation.

Just waiting.

According to the court, many applicants remained stuck in this status for months.

The judge repeatedly emphasized that these individuals were trying to comply with the legal immigration system.

They were not attempting to bypass immigration laws.

They were following them.

Yet they found themselves trapped in what the court described as an “indeterminate legal limbo.”

Which Immigration Benefits Were Affected?

The exact scope evolved over time, but the litigation and court filings indicate that the Benefits Hold Policy potentially affected a broad range of immigration benefits.

These included:

Adjustment of Status (Form I-485)

Applicants seeking permanent residence inside the United States reported delayed adjudications and unexplained processing freezes.

This is particularly significant because many of these applicants had already:

• established eligibility,
• paid substantial filing fees,
• completed biometrics,
• attended interviews.

Related HLG analysis:

Frozen Files: How Trump’s PM-602-0192 Quietly Halts USCIS Cases for Millions

https://www.lawfirm4immigrants.com/frozen-files-uscis-pm-602-0192-freeze/

Related HLG analysis:

Will USCIS Deny My I-485 Under the New 2026 Memo?

https://www.lawfirm4immigrants.com/will-uscis-deny-my-i-485-under-the-new-2026-memo-what-green-card-applicants-need-to-know-about-the-new-uscis-discretion-policy/

Employment Authorization (Form I-765)

For many immigrants, a delayed work permit is more than an inconvenience.

It can mean:

• loss of employment,
• loss of income,
• inability to support family members,
• interruption of professional careers.

A delayed EAD can quickly create a cascade of financial hardship.

One reason the plaintiffs challenged the policy so aggressively was that work authorization delays can affect virtually every aspect of an immigrant’s life.

Naturalization (Form N-400)

Citizenship applicants were also affected.

For these immigrants, delayed adjudication meant postponement of:

• voting rights,
• eligibility for certain federal jobs,
• ability to sponsor family members as U.S. citizens,
• full participation in American civic life.

Many applicants had already waited years to become eligible for naturalization.

The challenged policies added yet another layer of uncertainty.

Related HLG analysis:

N-400 Approved? Oath Ceremony Delays and Re-Interview Risks

https://www.lawfirm4immigrants.com/n-400-approved-oath-ceremony-cancelled/

Refugee, Asylee, and Humanitarian Benefits

Many humanitarian applicants also experienced additional scrutiny and delay.

The administration argued that heightened vetting was necessary.

The plaintiffs argued that USCIS effectively transformed additional vetting into an indefinite suspension of adjudications.

The court ultimately agreed that USCIS lacked authority to impose these broad freezes.

Why the Court Rejected the Benefits Hold Policy

One of the most important themes throughout Judge McConnell’s opinion is that Congress created a system for deciding immigration applications.

Congress authorized USCIS to:

• approve applications,
• deny applications,
• request additional evidence,
• conduct investigations.

What Congress did not authorize, according to the court, was a policy of simply refusing to make decisions based on nationality.

The opinion repeatedly returns to a central principle:

Immigration applications must be adjudicated under the law enacted by Congress—not under new nationality-based restrictions created by agency policy.

That principle forms the foundation of the entire decision.

Policy #2: The Global Asylum Hold Policy

The Policy That Suspended Asylum Adjudications

The second policy vacated by the court involved affirmative asylum processing.

This policy reportedly paused or delayed asylum adjudications involving nationals from designated countries.

For asylum applicants, time matters.

Many asylum seekers are:

• fleeing persecution,
• separated from family members,
• dependent on work authorization,
• trying to rebuild their lives.

A delay of several months can have enormous consequences.

A delay of several years can be devastating.

Why Asylum Delays Matter

Unlike many other immigration benefits, asylum cases often affect nearly every aspect of a person’s future.

Pending asylum applicants frequently need:

Employment Authorization

Without timely adjudication, work authorization can be delayed.

Family Reunification

Many hope to eventually petition spouses and children.

Long-Term Stability

Employers, schools, lenders, and landlords often require proof of immigration status.

Mental Health

Years of uncertainty can create severe psychological stress.

HLG has previously discussed these impacts in:

The Psychological Effects of Immigration Waiting

https://www.lawfirm4immigrants.com/psychological-effects-of-immigration-waiting/

Can USCIS Legally Freeze Asylum Cases?

That question became one of the central issues in the Rhode Island litigation.

The administration argued that extraordinary national-security concerns justified extraordinary measures.

The plaintiffs argued that Congress had already established the legal standards governing asylum adjudications.

The court sided with the plaintiffs.

Judge McConnell concluded that USCIS could not suspend asylum adjudications through the challenged policy framework.

Related HLG analysis:

Can Trump Legally Freeze Asylum and Immigration?

https://www.lawfirm4immigrants.com/can-trump-legally-freeze-asylum-and-immigration/

The Bigger Question Raised by Both Policies

The Benefits Hold Policy and the Global Asylum Hold Policy raise the same fundamental question:

Can USCIS refuse to decide an immigration case because it has concerns about the applicant’s nationality?

The Rhode Island court answered that question with a resounding no.

The opinion repeatedly emphasizes that immigration benefits must be adjudicated according to standards enacted by Congress—not according to nationality-based policies created by administrative action.

That conclusion forms the backbone of the decision and explains why the ruling may have consequences far beyond the travel-ban countries themselves.

What Immigrants Need to Know Right Now

If your case involves:

• Adjustment of Status (I-485),
• Employment Authorization (I-765),
• Naturalization (N-400),
• Asylum,
• Refugee or humanitarian benefits,

and you are from one of the countries affected by the challenged policies, this ruling may remove one of the barriers that prevented USCIS from making a decision on your case.

However, it is important to understand what the decision does not do.

The court did not:

• automatically approve pending applications;
• eliminate security screening;
• eliminate background checks;
• eliminate travel bans themselves;
• prevent USCIS from issuing RFEs or NOIDs;
• guarantee approval of any particular application.

Instead, the court held that USCIS generally must return to adjudicating applications under the immigration laws enacted by Congress rather than freezing cases based primarily upon nationality.

That distinction is critical.

In the next section, we will examine the two policies that may have caused even greater concern among immigrants: the Comprehensive Re-Review Policy and the Country-Specific Factors Policy, both of which allowed USCIS to revisit previously approved benefits and treat nationality itself as a negative factor in immigration adjudications.

Policy #3: The Comprehensive Re-Review Policy

“I Was Already Approved. Why Was USCIS Looking at My Case Again?”

For many immigrants, this was the most alarming policy challenged in the Rhode Island lawsuit.

Most people assume that once USCIS approves an immigration benefit, the matter is largely settled.

While USCIS has always possessed limited authority to reopen cases in certain circumstances involving fraud, misrepresentation, material error, or newly discovered evidence, the Comprehensive Re-Review Policy went much further.

According to the federal complaint, USCIS directed officers to revisit and re-examine previously approved immigration benefits involving nationals of designated countries.

In other words:

Even if you had already received a favorable decision from USCIS, your case could still be flagged for additional scrutiny simply because of your nationality.

For many immigrants, this was the first indication that the administration’s policies extended beyond future applications and reached backward into previously approved cases.

The plaintiffs argued that USCIS had created a system in which approval no longer necessarily meant finality.

The court agreed that the policy exceeded the agency’s authority and vacated it.

Why This Policy Created So Much Fear

Imagine receiving an approval notice.

You celebrate.

You begin making life plans.

You start a new job.

You enroll in school.

You sign a lease.

You purchase a home.

You build your future around the belief that USCIS has already reviewed and approved your case.

Then you learn that your approval may be subject to re-review because of your country of origin.

That uncertainty was one of the major themes running throughout the litigation.

The complaint repeatedly emphasized that immigrants from affected countries faced a level of uncertainty not imposed upon similarly situated applicants from other nations.

The court appeared particularly troubled by this nationality-based distinction.

Which Types of Cases Could Be Re-Reviewed?

According to the complaint and supporting materials, the re-review policy potentially reached a broad range of immigration benefits.

These could include:

Adjustment of Status Approvals

Individuals who had already obtained permanent residence-related approvals could face renewed scrutiny.

Employment Authorization

Previously approved work authorization benefits could be revisited.

Humanitarian Benefits

Certain refugee, asylum, parole, and humanitarian approvals became subject to additional review.

Other USCIS Benefits

The policy was not limited to a single immigration category.

Instead, it created a framework for re-examining previously approved cases involving nationals of designated countries.

Why the Court Rejected the Re-Review Policy

The court’s reasoning reflects one of the recurring themes throughout the opinion:

Congress established the standards governing immigration adjudications.

USCIS cannot create new nationality-based review systems that effectively alter those standards.

Judge McConnell repeatedly emphasized that the challenged policies were not based upon individualized evidence concerning specific applicants.

Instead, they relied heavily upon nationality.

The court concluded that this approach violated federal administrative law.

---

The Human Consequences of Re-Review

The practical consequences were enormous.

For many immigrants, immigration status affects nearly every aspect of life.

A previously approved benefit often serves as the foundation for:

• employment,
• housing,
• education,
• travel,
• family planning,
• business investment,
• long-term stability.

Even the possibility that an approval could be revisited created uncertainty.

For employers, universities, financial institutions, and families, uncertainty often functions as a denial.

That reality played a major role in the plaintiffs’ challenge.

Related HLG Analysis

For a deeper discussion of post-approval scrutiny and re-screening risks, see:

Can Rescreening Increase Deportation Risk?

https://www.lawfirm4immigrants.com/rescreening-increase-deportation-risk/

This article explores how expanded vetting initiatives can affect immigrants who previously believed their cases were fully resolved.

Policy #4: The Country-Specific Factors Policy

The Most Legally Significant Policy in the Entire Case

If the Benefits Hold Policy was the most visible policy, the Country-Specific Factors Policy may have been the most important legally.

Why?

Because it allegedly instructed USCIS officers to treat nationality itself as a negative factor during discretionary adjudications.

This raises a profound question:

Can the federal government treat your country of origin as evidence that you deserve less favorable treatment under immigration law?

The Rhode Island court concluded that USCIS could not do so through the challenged policy.

Understanding Immigration Discretion

Many immigration benefits involve discretion.

For example:

Adjustment of Status

Even if an applicant meets the technical eligibility requirements, USCIS often retains discretion regarding whether adjustment should be granted.

Humanitarian Benefits

Many humanitarian programs involve discretionary decision-making.

Certain Waivers

Various waivers and relief mechanisms require USCIS to balance positive and negative factors.

Historically, these discretionary decisions focus on:

Positive factors:

• family ties,
• employment history,
• community service,
• education,
• rehabilitation,
• humanitarian concerns.

Negative factors:

• criminal conduct,
• fraud,
• immigration violations,
• public-safety concerns.

The challenged policy introduced something different.

Nationality.

Why the Country-Specific Factors Policy Was Different

Under the challenged framework, officers were instructed to consider whether an applicant came from a designated country when exercising discretion.

This represented a dramatic shift.

Traditionally, immigration adjudications focus on:

What You Did

Your conduct.

Your history.

Your eligibility.

Your evidence.

Instead, the policy focused in part on:

Where You Were Born

That distinction became central to the litigation.

The plaintiffs argued that USCIS had effectively created nationality-based penalties without authorization from Congress.

The court agreed.

Judge McConnell’s Core Concern

Throughout the opinion, Judge McConnell repeatedly returns to a simple idea:

The challenged policies treated people differently because of “the happenstance of their birth.”

That phrase may become one of the most frequently cited lines from the decision.

The court viewed nationality-based decision making as fundamentally inconsistent with the immigration framework Congress enacted.

The opinion repeatedly emphasizes that immigration benefits must be adjudicated according to individualized statutory standards—not generalized assumptions associated with a person’s country of origin.

Why This Matters for Adjustment of Status Cases

This issue is especially important for green-card applicants.

Many readers of this article are likely familiar with USCIS’s new Adjustment of Status discretion guidance.

HLG has extensively analyzed that policy:

Will USCIS Deny My I-485 Under the New 2026 Memo?

https://www.lawfirm4immigrants.com/will-uscis-deny-my-i-485-under-the-new-2026-memo-what-green-card-applicants-need-to-know-about-the-new-uscis-discretion-policy/

What Happens If Your Adjustment of Status Is Denied?

https://www.lawfirm4immigrants.com/what-happens-if-your-adjustment-of-status-is-denied-the-real-risks-facing-green-card-applicants-under-the-new-uscis-i-485-memo/

The Rhode Island decision sends an important message:

While USCIS retains discretion in many immigration contexts, that discretion is not unlimited.

Courts may intervene when USCIS attempts to transform nationality into a standalone negative factor unsupported by statute.

That principle may have implications far beyond the travel-ban context.

The Broader Legal Significance

The Country-Specific Factors Policy raises a question that extends far beyond immigration.

Can a federal agency create special burdens for individuals based largely on nationality when Congress has not expressly authorized such distinctions?

Judge McConnell’s answer was no.

That conclusion may influence future litigation involving:

• travel bans,
• enhanced vetting programs,
• nationality-based screening initiatives,
• discretionary immigration adjudications,
• national-security-related immigration policies.

This may ultimately become one of the most important aspects of the decision.

Why These Two Policies Matter Even More Than the Benefits Freeze

The Benefits Hold Policy delayed decisions.

The Re-Review Policy threatened approved cases.

The Country-Specific Factors Policy influenced how future decisions would be made.

Together, these policies created a system in which immigrants from designated countries faced:

• greater scrutiny,
• longer delays,
• increased uncertainty,
• and potentially less favorable discretionary treatment.

The Rhode Island court concluded that USCIS lacked authority to implement that system.

That conclusion forms the foundation for the next critical question:

Which countries were affected, and how many immigrants may have been impacted?

The answer may surprise you.

The challenged policies ultimately reached approximately 39 countries across Africa, Asia, the Middle East, Latin America, and the Caribbean—and may have affected tens of thousands of pending immigration cases nationwide.

Complete List of Countries Covered by the Travel Bans and USCIS Benefits Hold Policies

One of the biggest misconceptions surrounding this litigation is that only a handful of countries were affected.

In reality, the combination of:

• Presidential Proclamation 10949 (June 2025)
• Presidential Proclamation 10998 (December 2025)
• USCIS PM-602-0192 (December 2, 2025)
• USCIS PM-602-0194 (January 1, 2026)

ultimately expanded nationality-based restrictions to approximately 39 countries and territories. USCIS then used those country designations as the basis for adjudication holds, asylum pauses, re-review procedures, and enhanced vetting. (NAFSA)

Countries Subject to Full Restrictions

The following countries were subject to the most severe restrictions under the expanded travel-ban framework:

Original Full-Ban Countries (June 2025)

• Afghanistan
• Chad
• Republic of the Congo
• Equatorial Guinea
• Eritrea
• Haiti
• Iran
• Libya
• Myanmar (Burma)
• Somalia
• Sudan
• Yemen

Additional Full-Ban Countries Added December 2025

• Burkina Faso
• Laos
• Mali
• Niger
• Sierra Leone
• South Sudan
• Syria

Additional Category

• Individuals traveling on Palestinian Authority-issued or endorsed travel documents

These countries formed the core group later referenced in PM-602-0192 and PM-602-0194. (NAFSA)

Countries Subject to Partial Restrictions

Original Partial-Restriction Countries (June 2025)

• Burundi
• Cuba
• Laos (later moved to full restriction)
• Sierra Leone (later moved to full restriction)
• Togo
• Turkmenistan
• Venezuela

Additional Partial-Restriction Countries Added December 2025

• Angola
• Antigua and Barbuda
• Benin
• Côte d’Ivoire
• Dominica
• Gabon
• The Gambia
• Malawi
• Mauritania
• Nigeria
• Senegal
• Tanzania
• Tonga
• Zambia
• Zimbabwe

These countries became part of the expanded high-risk-country framework that USCIS incorporated into PM-602-0194. (NAFSA)

Why This Matters

For many immigrants, the critical point is this:

The Rhode Island lawsuit was not primarily challenging the travel bans themselves.

It was challenging what USCIS did after the travel bans.

Under PM-602-0192 and PM-602-0194, USCIS instructed officers to:

• place adjudicative holds on pending cases;
• suspend asylum adjudications;
• conduct re-reviews of previously approved benefits;
• apply country-specific discretionary factors.

Those policies affected applicants from the countries listed above and ultimately became the focus of the Rhode Island litigation. (USCIS)

If Your Country Appears on This List

You should carefully review your immigration history if you experienced:

• unexplained delays;
• stalled I-485 adjudications;
• delayed work permits;
• delayed N-400 decisions;
• delayed asylum processing;
• post-approval scrutiny.

The Rhode Island court concluded that USCIS generally lacked authority to impose these nationality-based adjudication holds and vacated the policies that created them. (International Scholars Office)

For the final flagship article, I would also add a country-by-country FAQ table (“I’m from Nigeria—was I affected?”, “I’m from Afghanistan—what does this ruling mean for me?”), because that is exactly how AI search users and prospective clients search.

What the Judge Actually Said: 10 Findings Every Immigrant Should Understand

Many articles about this case focus on the outcome.

The Rhode Island court struck down four USCIS policies.

But the most important part of the decision is not the result.

It is the reasoning.

Judge McConnell’s opinion explains why USCIS lost.

And those explanations may influence immigration litigation for years to come.

For immigrants trying to understand whether this decision affects them, the court’s reasoning is far more important than the headlines.

The opinion repeatedly returns to a simple theme:

People who followed the rules, filed applications, paid fees, and waited their turn should not be trapped in indefinite bureaucratic limbo because of their nationality.

Below are the most important findings from the court’s decision and what they mean in plain English.

Finding #1: USCIS Cannot Create New Immigration Rules Without Legal Authority

One of the central conclusions of the opinion is that USCIS exceeded the authority granted to it by Congress.

The court emphasized that immigration agencies must administer the laws enacted by Congress.

They cannot create entirely new eligibility systems through internal memoranda.

This finding strikes at the heart of PM-602-0192 and PM-602-0194.

The court concluded that USCIS had effectively created a parallel system for nationals of designated countries.

That system imposed additional burdens Congress never enacted.

What This Means for Immigrants

USCIS cannot simply invent new barriers to approval because it believes additional restrictions would be beneficial.

The agency must operate within the framework established by federal immigration law.

Finding #2: USCIS Cannot Refuse to Decide Cases Indefinitely

This may be the most important practical aspect of the decision.

The court repeatedly criticized USCIS for accepting applications and then failing to make decisions.

The immigration laws contemplate decisions.

Those decisions may be:

• approvals,
• denials,
• requests for evidence,
• notices of intent to deny.

What the court rejected was a system where applications simply remain frozen indefinitely.

What This Means for Immigrants

If your application has been pending for an extraordinary period because of nationality-based review procedures, this decision may provide support for future challenges to those delays.

This principle may also strengthen future mandamus litigation.

Finding #3: Nationality Alone Is Not Enough

Throughout the opinion, Judge McConnell repeatedly expressed concern that USCIS was treating applicants differently because of nationality.

One of the most frequently quoted passages criticizes a system that disadvantaged immigrants because of:

“the happenstance of their birth.”

That phrase captures the essence of the court’s reasoning.

The court viewed nationality-based adjudication holds as fundamentally inconsistent with the individualized review process established by Congress.

What This Means for Immigrants

The government may investigate concerns about particular applicants.

The government may conduct background checks.

The government may evaluate evidence.

But the court concluded that nationality itself cannot serve as the basis for a separate adjudication system absent clear congressional authorization.

Finding #4: National Security Does Not Eliminate Legal Limits

The administration argued that the challenged policies were necessary for national security.

The court did not reject the importance of national security.

Instead, it rejected the idea that national-security concerns automatically authorize USCIS to disregard statutory requirements.

This distinction is crucial.

The court essentially concluded:

National security matters.

But the law still matters.

What This Means for Immigrants

Future administrations may continue emphasizing national-security concerns.

However, courts remain willing to review whether immigration agencies have exceeded their legal authority.

Finding #5: USCIS Must Follow the Administrative Procedure Act

A significant portion of the opinion focuses on administrative law.

The court concluded that USCIS failed to comply with federal requirements governing agency decision-making.

For most immigrants, the Administrative Procedure Act sounds technical.

But its purpose is straightforward:

Federal agencies must follow rules when creating rules.

The APA prevents agencies from fundamentally changing legal standards through informal processes.

What This Means for Immigrants

The APA often becomes one of the strongest tools available for challenging unlawful immigration policies.

Many of the most successful immigration lawsuits of the last decade have relied upon APA claims.

Finding #6: Previously Approved Cases Cannot Be Reopened Arbitrarily

The court was particularly skeptical of USCIS’s Comprehensive Re-Review Policy.

Historically, reopening approved immigration cases has required specific legal grounds.

The challenged policy expanded re-review based largely upon nationality.

The court concluded that USCIS lacked authority to impose such a system.

What This Means for Immigrants

Approval should generally provide stability.

The government cannot create broad nationality-based re-review programs without legal authorization.

Finding #7: Asylum Adjudications Cannot Be Suspended Through Internal Policy

The court also struck down the Global Asylum Hold Policy.

This finding is significant because asylum applicants often depend upon:

• work authorization,
• family reunification opportunities,
• long-term planning.

The court concluded that USCIS lacked authority to broadly suspend asylum adjudications through the challenged framework.

What This Means for Immigrants

The decision reinforces the principle that asylum applications must generally be processed under the procedures established by Congress.

Finding #8: Immigration Benefits Must Be Decided Individually

One of the strongest themes throughout the opinion is individualized review.

Immigration law generally evaluates:

• individual conduct,
• individual eligibility,
• individual evidence.

The challenged policies shifted attention toward group classifications.

The court rejected that approach.

What This Means for Immigrants

Your application should be judged on your facts—not merely your nationality.

Finding #9: USCIS Cannot Transform Discretion into Nationality-Based Decision-Making

Many immigration benefits involve discretion.

Adjustment of Status is a good example.

USCIS may weigh:

• positive factors,
• negative factors,
• humanitarian considerations,
• family relationships.

The Country-Specific Factors Policy effectively added nationality to that balancing process.

The court rejected that approach.

What This Means for Immigrants

While USCIS retains discretion, that discretion is not unlimited.

Courts may intervene when agencies transform discretionary decision-making into nationality-based decision-making.

Finding #10: Congress Created an Immigration System Based on Law, Not National Origin

This may be the overarching theme of the entire opinion.

Judge McConnell repeatedly emphasized that Congress established detailed rules governing immigration adjudications.

The challenged policies effectively replaced those rules with a nationality-based framework.

The court concluded that USCIS lacked authority to do so.

What This Means for Immigrants

The decision reinforces a fundamental principle:

Immigration benefits should generally be decided according to the law enacted by Congress, not according to administrative preferences concerning particular nationalities.

Richard Herman’s Analysis: Why This Decision Could Become One of the Most Important Immigration Cases of the Decade

Most media coverage describes this as a travel-ban case.

That misses the bigger story.

The true significance of the decision is that the court rejected a new category of immigration adjudication:

1. Approved.
2. Denied.
3. Frozen indefinitely.

Congress authorized the first two.

Judge McConnell concluded that Congress did not authorize the third.

That principle may ultimately affect far more than travel-ban countries.

Future litigation involving:

• delayed I-485 applications,
• delayed N-400 applications,
• prolonged security checks,
• unreasonable processing times,
• mandamus lawsuits,

may all cite this case.

The broader legacy of the decision may not be about travel bans at all.

It may be about forcing USCIS to make decisions.

What Happens Next?

The government is expected to appeal.

Potential next steps include:

• motions to stay the decision;
• appeal to the First Circuit;
• emergency appellate proceedings;
• possible Supreme Court review.

As a result, this story is not over.

However, the Rhode Island decision represents one of the strongest judicial rebukes of nationality-based immigration adjudication policies in recent years.

And for many immigrants whose cases have remained frozen for months—or even years—that may be the most important development of all.

How Does This Decision Affect My Immigration Case?

For most immigrants, the legal details of Dorcas v. USCIS matter for one reason:

“What does this mean for my case?”

That is the right question.

The Rhode Island decision does not automatically approve anyone’s application.

It does not eliminate security checks.

It does not invalidate the travel bans themselves.

It does not guarantee that USCIS will approve a green card, work permit, citizenship application, or asylum case.

What it does do is remove one of the legal foundations USCIS used to justify nationality-based adjudication holds, asylum freezes, re-review procedures, and country-specific discretionary treatment.

For many immigrants, that could be significant.

Let’s examine how the decision may affect specific categories of cases.

If I Have a Pending Green Card Application (Form I-485)

Short Answer

This decision may help if your case was delayed because of nationality-based review procedures.

However, it does not guarantee approval.

Why I-485 Applicants Should Pay Attention

Adjustment of Status applicants were among the groups most likely to be affected by the challenged USCIS policies.

Many applicants reported:

• unusual delays,
• extended security reviews,
• unexplained inactivity,
• prolonged adjudication holds.

The Rhode Island court concluded that USCIS lacked authority to impose broad nationality-based adjudication freezes.

As a result, some applicants may see movement in cases that had been stalled.

Marriage-Based Green Cards

If you are pursuing a marriage-based green card and are from one of the affected countries, the decision may be particularly important.

Marriage-based applicants often:

• live with U.S. citizen spouses,
• work lawfully in the United States,
• have children who are U.S. citizens.

Delays can affect entire families.

The court recognized these real-world consequences throughout the litigation.

Employment-Based Green Cards

Employment-based applicants may also benefit.

Many skilled workers depend upon timely green-card adjudications for:

• job mobility,
• career advancement,
• employer sponsorship,
• family stability.

Nationality-based delays can have substantial professional consequences.

Related HLG Resources

Will USCIS Deny My I-485 Under the New 2026 Memo?

https://www.lawfirm4immigrants.com/will-uscis-deny-my-i-485-under-the-new-2026-memo-what-green-card-applicants-need-to-know-about-the-new-uscis-discretion-policy/

What Happens If Your Adjustment of Status Is Denied?

https://www.lawfirm4immigrants.com/what-happens-if-your-adjustment-of-status-is-denied-the-real-risks-facing-green-card-applicants-under-the-new-uscis-i-485-memo/

If I Have a Pending Work Permit (Form I-765)

Short Answer

Potentially yes.

The Benefits Hold Policy allegedly affected employment authorization adjudications.

The court struck that policy down.

Why This Matters

For many immigrants, work authorization is the most important immigration benefit they possess.

A delayed work permit can mean:

• job loss,
• inability to support family members,
• interruption of professional careers,
• financial hardship.

The Rhode Island decision removes one of the policies that allegedly contributed to these delays.

However, USCIS may still conduct lawful security reviews and background investigations.

What You Should Expect

Some applicants may see:

• renewed case activity,
• updated online case statuses,
• requests for evidence,
• adjudications of previously stalled applications.

Others may experience no immediate change while appeals proceed.

If I Have a Pending Citizenship Application (Form N-400)

Short Answer

Possibly.

Naturalization applicants were among the groups affected by the challenged policies.

Why Citizenship Cases Matter

A delayed naturalization application affects more than immigration status.

Citizenship often determines:

• voting rights,
• eligibility for certain jobs,
• ability to petition relatives,
• participation in civic life.

Many naturalization applicants had already spent years waiting to become eligible.

The challenged policies added another layer of uncertainty.

What the Decision Means

The court rejected nationality-based adjudication holds.

Applicants whose cases were delayed because of those policies may see renewed activity.

Related HLG Resource:

N-400 Approved? Oath Ceremony Delays and Re-Interview Risks

https://www.lawfirm4immigrants.com/n-400-approved-oath-ceremony-cancelled/

If I Have a Pending Asylum Application

Short Answer

This may be one of the groups most directly affected by the decision.

---

Why?

The court specifically vacated the Global Asylum Hold Policy.

That policy allegedly suspended or delayed affirmative asylum adjudications involving nationals from designated countries.

The court concluded that USCIS lacked authority to impose that broad suspension.

What This Means for Asylum Applicants

Potential benefits include:

• renewed case processing,
• movement toward interviews,
• progress on work authorization eligibility,
• reduced risk of indefinite delays.

However, the decision does not eliminate asylum eligibility requirements.

Applicants must still prove:

• past persecution,
• well-founded fear,
• nexus,
• credibility,
• statutory eligibility.

Related HLG Resource

Can Trump Legally Freeze Asylum and Immigration?

https://www.lawfirm4immigrants.com/can-trump-legally-freeze-asylum-and-immigration/

If My Immigration Benefit Was Already Approved

Short Answer

This decision may be particularly important.

Why?

The court struck down the Comprehensive Re-Review Policy.

That policy authorized USCIS to revisit previously approved immigration benefits involving nationals from designated countries.

For many immigrants, approval no longer felt final.

The court rejected that framework.

What This Means

The decision strengthens the principle that approved benefits should not be subjected to broad nationality-based re-review programs.

That does not mean USCIS loses its traditional authority to reopen cases involving:

• fraud,
• misrepresentation,
• material error,
• newly discovered evidence.

But it does mean USCIS cannot create sweeping nationality-based re-review systems without legal authorization.

Related HLG Resource

Can Rescreening Increase Deportation Risk?

https://www.lawfirm4immigrants.com/rescreening-increase-deportation-risk/

If I Am Thinking About Filing a New Immigration Application

Short Answer

The decision is encouraging—but caution remains warranted.

Why?

Although the Rhode Island court vacated the challenged policies, the administration is expected to appeal.

Future developments could include:

• stays,
• appellate review,
• revised agency policies,
• new vetting procedures.

As a result, immigrants should not assume all nationality-related scrutiny has disappeared.

What Applicants Should Do

Strong applications remain critical.

Applicants should continue focusing on:

Documentation

Submit complete evidence.

Accuracy

Ensure forms and supporting materials are consistent.

Disclosure

Address potential issues proactively.

Legal Strategy

Consult experienced immigration counsel when nationality-based concerns may arise.

If My Case Has Been Delayed for Many Months

Could This Decision Help Me?

Potentially.

The answer depends upon:

• your nationality,
• the type of application,
• when the application was filed,
• the reason for the delay.

Questions to Ask

Was My Country Covered by the Challenged Policies?

Review the country lists discussed earlier in this article.

Did the Delay Begin After PM-602-0192 or PM-602-0194?

Timing may be important.

Has USCIS Provided Any Explanation?

Some delays involve legitimate security checks.

Others may not.

Is Mandamus Litigation Appropriate?

In certain circumstances, federal litigation may be an option.

Could This Decision Lead to More Mandamus Lawsuits?

Many immigration lawyers believe the answer is yes.

One of the strongest themes throughout Judge McConnell’s opinion is that USCIS cannot simply leave applications unresolved indefinitely.

That principle aligns closely with arguments frequently raised in mandamus cases.

Future plaintiffs may cite this decision when arguing that USCIS has unlawfully delayed adjudication.

While every case is different, the opinion may become an important tool in delay-related litigation.

The Bottom Line

The Rhode Island decision does not guarantee approval of any immigration benefit.

It does not eliminate security checks.

It does not invalidate the travel bans themselves.

But it does send a powerful message:

USCIS generally cannot place immigrants into indefinite legal limbo because of their nationality.

For applicants whose cases were delayed, frozen, re-reviewed, or subjected to unusual scrutiny because of the challenged policies, that principle may prove enormously important.

And it sets the stage for the next critical question:

Will the government appeal, and what happens next?

Will the Government Appeal? What Happens Next?

One of the most common questions immigrants ask after a major court decision is:

“Is this final?”

The short answer is:

Probably not.

The Rhode Island decision is a major victory for immigrants affected by the challenged USCIS policies, but the litigation is unlikely to end here.

In fact, many of the most significant immigration cases of the last decade have continued through multiple levels of federal court review before reaching a final resolution.

As a result, immigrants should celebrate this decision—but also understand that additional legal battles are likely ahead.

Is the Government Likely to Appeal?

Short Answer

Almost certainly.

The policies struck down by Judge McConnell were not minor administrative actions.

They were central components of the administration’s broader national-security and immigration-enforcement strategy.

Because the court vacated all four challenged policies, the government has strong incentives to seek appellate review.

What Would an Appeal Look Like?

The case would likely proceed to the:

United States Court of Appeals for the First Circuit

The First Circuit reviews federal district court decisions arising from:

• Rhode Island,
• Massachusetts,
• Maine,
• New Hampshire,
• Puerto Rico.

The appellate court would review Judge McConnell’s legal conclusions and determine whether the district court correctly interpreted federal law.

Could the Government Ask for a Stay?

Yes.

One of the first things government lawyers often seek after losing a major case is a stay.

A stay temporarily pauses the effect of a court’s ruling while the appeal proceeds.

Why Would a Stay Matter?

If a stay is granted:

USCIS may be able to continue implementing some or all of the challenged policies while appellate review continues.

If a stay is denied:

USCIS may be required to comply with Judge McConnell’s decision while the appeal proceeds.

For affected immigrants, this distinction is enormously important.

What Arguments Is the Government Likely to Make?

Although the government’s appellate briefing has not yet been filed, several themes are likely.

National Security

The administration consistently defended the challenged policies as necessary national-security measures.

Government lawyers will likely argue that courts should defer to the Executive Branch on national-security matters.

This argument has historically carried substantial weight in some immigration cases.

Agency Authority

The government may argue that USCIS possesses broad authority to conduct:

• vetting,
• security reviews,
• adjudication prioritization,
• fraud prevention.

The appeal may focus heavily on the scope of that authority.

Presidential Power

The administration may also argue that the challenged USCIS policies were closely connected to presidential travel-ban authority and therefore deserve heightened judicial deference.

Why the Appeal May Be Difficult

Despite those arguments, Judge McConnell’s opinion presents several challenges for the government.

The court repeatedly emphasized that:

Congress Already Created the Rules

The court found that USCIS was effectively creating new nationality-based restrictions that Congress never enacted.

The Policies Affected People Already Inside the United States

This is an important distinction.

Many travel-ban cases involve individuals seeking admission from abroad.

The Rhode Island case involved many immigrants who:

• already lived in the United States,
• already filed applications,
• already paid fees,
• already passed through portions of the immigration process.

That fact may make the government’s position more difficult.

The Court Focused on Agency Action

Rather than directly attacking presidential authority, the opinion focuses heavily on USCIS conduct.

Administrative-law arguments often receive particularly close scrutiny from appellate courts.

Could This Case Reach the Supreme Court?

Yes.

If the First Circuit affirms the Rhode Island decision, the government could seek review by the United States Supreme Court.

Whether the Court would agree to hear the case is impossible to predict.

However, several factors increase the likelihood of Supreme Court interest:

• immigration law,
• national-security claims,
• presidential authority,
• agency power,
• travel-ban-related policies.

These are all subjects that frequently attract Supreme Court review.

What Should Immigrants Expect While Appeals Continue?

One of the biggest mistakes immigrants make is assuming that a court decision immediately changes everything.

In reality, implementation often takes time.

Some Cases May Move Quickly

Certain applications that were directly affected by adjudication holds may begin moving.

Possible developments include:

• updated case statuses,
• interview scheduling,
• requests for evidence,
• approvals or denials.

Some Cases May Continue to Experience Delays

Not every delay was caused by the challenged policies.

USCIS still conducts:

• background checks,
• fraud investigations,
• security screening,
• eligibility reviews.

As a result, some applicants may see little immediate change.

Additional Litigation Is Likely

Even if the Rhode Island decision remains in effect, future litigation may challenge:

• revised USCIS policies,
• replacement guidance,
• new vetting frameworks,
• alternative screening procedures.

History suggests that immigration litigation often evolves rather than ends.

Could USCIS Simply Issue a New Memo?

Possibly.

One lesson from the last decade of immigration litigation is that agencies often respond to adverse court decisions by issuing revised policies.

The government may attempt to:

• narrow the challenged policies;
• rewrite them;
• provide additional justification;
• adopt alternative procedures.

That possibility makes continued monitoring essential.

What This Means for Applicants from Affected Countries

If you are from one of the designated countries discussed earlier, now is not the time to become complacent.

Instead, this is the time to:

Monitor Your Case Closely

Watch for:

• status updates,
• notices,
• interview scheduling,
• requests for evidence.

Preserve Documentation

Maintain records showing:

• filing dates,
• correspondence,
• case history,
• prior delays.

Those records may become important if additional litigation becomes necessary.

Consult Experienced Immigration Counsel

Nationality-based issues remain among the most rapidly changing areas of immigration law.

Strategic planning is more important than ever.

Richard Herman’s Predictions

Based on more than three decades of immigration practice, several developments appear likely.

Prediction #1: The Government Will Appeal

The stakes are simply too high for the administration not to seek appellate review.

Prediction #2: More Federal Lawsuits Are Coming

The Rhode Island decision will likely inspire additional challenges involving:

• adjudication delays,
• nationality-based screening,
• enhanced vetting programs,
• prolonged security reviews.

Prediction #3: Mandamus Litigation Will Increase

Immigrants and attorneys will increasingly cite this decision when challenging unreasonable delays.

The opinion’s emphasis on USCIS’s obligation to make decisions is particularly important.

Prediction #4: USCIS Will Attempt to Replace Some of the Vacated Policies

History suggests that agencies rarely abandon major initiatives entirely.

Expect revised guidance and new policy memoranda.

Prediction #5: This Decision May Ultimately Become More Important Than the Travel Bans Themselves

Most people think this case is about travel bans.

It is not.

The broader significance involves a different question:

Can USCIS accept an application, collect a filing fee, and then simply refuse to decide the case?

Judge McConnell’s answer was no.

That principle may influence immigration litigation for years to come.

The Bottom Line

The Rhode Island decision is a major victory for immigrants who challenged nationality-based adjudication holds.

But the legal battle is not over.

Appeals are likely.

New policies may emerge.

Additional litigation almost certainly lies ahead.

Still, one message from the decision is already clear:

Immigrants who follow the rules, file applications, pay fees, and wait their turn are entitled to have their cases adjudicated according to the law enacted by Congress—not according to nationality-based restrictions created through internal agency memoranda.

That principle may prove to be the most enduring legacy of this landmark case.

Frequently Asked Questions (FAQ)

What the Rhode Island USCIS Benefits Freeze Decision Means for Immigrants

1. What did the Rhode Island federal court actually decide?

The court struck down four USCIS policies that had imposed nationality-based adjudication holds, asylum freezes, re-review procedures, and country-specific discretionary factors affecting nationals from approximately 39 countries.

Judge McConnell concluded that USCIS exceeded its authority and violated federal administrative law when implementing these policies.

---

2. Does this decision eliminate the travel bans?

No.

This is one of the most important distinctions to understand.

The case primarily challenges what USCIS did after the travel bans.

The decision does not automatically invalidate the travel-ban proclamations themselves.

Instead, it focuses on USCIS policies affecting immigration benefits filed with USCIS.

---

3. Does this decision affect green card applications?

Potentially yes.

If your Adjustment of Status (Form I-485) application was delayed because of nationality-based adjudication holds, this decision may help.

However, it does not guarantee approval.

USCIS may still:

• conduct background checks;
• review eligibility;
• issue RFEs;
• issue NOIDs;
• deny ineligible cases.

---

4. Does this decision affect marriage-based green cards?

Potentially.

Marriage-based applicants from affected countries were among those who may have experienced additional scrutiny and delayed adjudications.

The decision removes one of the legal foundations for those nationality-based delays.

---

5. Does this decision affect employment-based green cards?

Potentially.

Employment-based applicants whose cases were delayed because of the challenged policies may benefit from renewed adjudication activity.

---

6. Does this decision affect work permits (I-765)?

Potentially yes.

The Benefits Hold Policy reportedly affected Employment Authorization Document (EAD) adjudications.

The court vacated that policy.

---

7. Does this decision affect citizenship applications (N-400)?

Potentially yes.

Naturalization applicants were among the groups affected by the challenged policies.

The decision may help applicants whose citizenship cases experienced nationality-based delays.

---

8. Does this decision affect asylum applications?

Yes.

The court specifically vacated the Global Asylum Hold Policy.

This aspect of the decision may be particularly important for asylum seekers whose cases were delayed because of nationality-based review procedures.

---

9. Does this decision affect refugees and asylees?

Potentially.

Refugees and asylees were among the groups impacted by heightened vetting and review procedures.

The decision may affect some of those policies.

---

10. My application was already approved. Does this case matter to me?

Possibly.

The court struck down the Comprehensive Re-Review Policy.

That policy authorized USCIS to revisit certain previously approved benefits involving nationals from designated countries.

---

11. Can USCIS still reopen approved cases?

Yes.

USCIS retains traditional authority to reopen cases involving:

• fraud;
• misrepresentation;
• material error;
• newly discovered evidence.

The Rhode Island decision does not eliminate those powers.

---

12. Does this decision mean USCIS must approve my case?

No.

The decision concerns adjudication procedures.

It does not determine whether any individual applicant qualifies for approval.

---

13. Does this decision stop USCIS from conducting security checks?

No.

USCIS may still:

• conduct background investigations;
• review criminal records;
• verify eligibility;
• evaluate admissibility issues.

The court did not eliminate lawful vetting procedures.

---

14. Can USCIS still issue Requests for Evidence (RFEs)?

Yes.

RFEs remain an important part of the adjudication process.

Nothing in the decision prevents USCIS from requesting additional evidence.

---

15. Can USCIS still issue Notices of Intent to Deny (NOIDs)?

Yes.

The decision does not affect USCIS’s ability to issue NOIDs when appropriate.

---

16. Which countries were affected?

The challenged policies reached nationals from approximately 39 countries associated with the June 2025 and January 2026 travel-ban framework and related USCIS memoranda.

See the country-by-country section above for the complete list.

---

17. Why did USCIS create these policies?

The administration argued that heightened national-security concerns justified enhanced review procedures.

The court concluded that USCIS exceeded its legal authority when implementing the challenged policies.

---

18. Why did the court strike the policies down?

The court concluded that:

• USCIS exceeded its statutory authority;
• USCIS violated the Administrative Procedure Act;
• USCIS improperly relied upon nationality-based restrictions;
• USCIS unlawfully suspended adjudications.

---

19. What does the phrase “the happenstance of their birth” mean?

This is one of the most important phrases in the opinion.

Judge McConnell used it to criticize a system that treated applicants differently because of where they were born.

The court repeatedly emphasized that immigration benefits should generally be adjudicated based on statutory eligibility and individual circumstances.

---

20. What is PM-602-0192?

PM-602-0192 was the USCIS memorandum that established the framework for:

• Benefits Holds;
• Asylum Holds;
• Re-Review Procedures;
• Country-Specific Factors.

It became one of the central issues in the Rhode Island litigation.

Related HLG Resource:

https://www.lawfirm4immigrants.com/frozen-files-uscis-pm-602-0192-freeze/

---

21. What is PM-602-0194?

PM-602-0194 expanded and clarified enhanced review procedures involving designated high-risk countries.

The Rhode Island decision discusses how these policies evolved over time.

---

22. Does this case affect the new I-485 discretion memo (PM-602-0199)?

Not directly.

However, both controversies involve questions about:

• USCIS discretion;
• nationality;
• vetting;
• adjudication standards;
• agency authority.

Related HLG Resource:

https://www.lawfirm4immigrants.com/will-uscis-deny-my-i-485-under-the-new-2026-memo-what-green-card-applicants-need-to-know-about-the-new-uscis-discretion-policy/

---

23. Can I file a new immigration application now?

Yes.

The Rhode Island decision does not prevent eligible applicants from filing immigration benefits.

Applicants should continue submitting complete and well-documented filings.

---

24. Should I delay filing because of possible appeals?

Generally, no.

Most applicants should continue pursuing lawful immigration benefits according to existing eligibility requirements.

Individual circumstances may vary.

---

25. What if my case has been pending for a very long time?

The decision may be relevant.

Particularly if:

• you are from an affected country;
• the delay began after PM-602-0192;
• USCIS has provided little explanation.

---

26. Can I sue USCIS if my case remains delayed?

Possibly.

Mandamus and Administrative Procedure Act litigation remain potential options in some cases.

The Rhode Island decision may strengthen certain delay-related arguments.

---

27. What is a mandamus lawsuit?

A mandamus action asks a federal court to compel a government agency to perform a legally required duty.

In immigration cases, mandamus litigation often focuses on unreasonable delays.

---

28. Will this decision increase mandamus lawsuits?

Many immigration attorneys believe so.

The court repeatedly emphasized USCIS’s obligation to adjudicate cases.

That principle may be cited in future delay-related litigation.

---

29. Will the government appeal?

Almost certainly.

The administration is expected to seek appellate review.

---

30. Could the decision be reversed?

Yes.

Any district court decision may be:

• stayed,
• modified,
• reversed,
• affirmed.

The appellate process remains ongoing.

---

31. Could the case reach the Supreme Court?

Possibly.

The issues involve:

• immigration law;
• presidential authority;
• national security;
• agency power.

Those topics often attract Supreme Court review.

---

32. If the government appeals, does the decision disappear?

Not automatically.

The government would likely seek a stay.

Whether a stay is granted depends on subsequent court proceedings.

---

33. What should immigrants do right now?

Monitor your case closely.

Watch for:

• status updates;
• interview notices;
• RFEs;
• approvals;
• denials.

Maintain copies of all USCIS correspondence.

---

34. What should employers do?

Employers sponsoring foreign nationals should:

• monitor delayed cases;
• communicate with affected employees;
• review immigration timelines;
• consult immigration counsel regarding pending applications.

---

35. What should family members do?

Families should remain informed and maintain documentation regarding:

• filing dates;
• case status updates;
• communications with USCIS.

---

36. Does this decision help everyone from affected countries?

Not necessarily.

Each case remains individual.

The decision removes challenged policies but does not guarantee any specific outcome.

---

37. Could USCIS issue new policies?

Yes.

The government may attempt to:

• revise policies;
• issue replacement guidance;
• provide additional legal justification.

Future litigation remains possible.

---

38. What is the biggest takeaway from this decision?

The court rejected the idea that USCIS may place immigrants into indefinite legal limbo because of nationality.

That principle may become one of the most important immigration-law developments of 2026.

---

39. Why is this case important beyond travel-ban countries?

Because it addresses a broader question:

Can USCIS accept an application, collect a filing fee, and then simply refuse to make a decision?

Judge McConnell’s answer was no.

That conclusion may influence future litigation involving immigration delays across many categories.

---

40. Where can I read the actual court opinion?

Federal Court Opinion:

https://democracyforward.org/wp-content/uploads/2026/06/16112511402.pdf

Federal Complaint:

https://democracyforward.org/wp-content/uploads/2026/03/26-cv-132-Dorcas-et-al-v-USCIS-et-al-ECF-1-Complaint-with-attachments.pdf

These documents provide the best source for understanding the litigation and the court’s reasoning.

Country-Specific Questions

41. I Am From Afghanistan. Does This Decision Affect Me?

Potentially yes.

Afghanistan was among the countries subject to the travel-ban framework and heightened USCIS scrutiny.

Applicants with delayed:

• I-485 applications;
• asylum cases;
• humanitarian applications;
• work permits;

should carefully review their case history.

Related HLG Resource:

https://www.lawfirm4immigrants.com/impact-of-dc-shooting-on-afghan-siv-parole-asylum/

42. I Am From Iran. Does This Decision Affect Me?

Potentially.

Iranian nationals were among those subject to heightened vetting and travel restrictions.

The Rhode Island decision may affect applicants whose cases experienced nationality-based delays.

43. I Am From Haiti. Does This Decision Affect Me?

Potentially.

Haiti was included in the travel-ban framework and the nationality-based review policies challenged in the litigation.

44. I Am From Somalia. Does This Decision Affect Me?

Potentially.

Somali nationals were among those most frequently referenced in discussions regarding heightened vetting and adjudication holds.

44. I Am From Yemen. Does This Decision Affect Me?

Potentially.

Yemen was one of the original full-restriction countries.

Applicants with delayed benefits should monitor developments closely.

---

45. I Am From Venezuela. Does This Decision Affect Me?

Potentially.

Venezuela appeared in the travel-ban framework and related nationality-based screening initiatives.

---

46. I Am From Nigeria. Does This Decision Affect Me?

Potentially.

Nigeria was added through later high-risk-country and expanded review initiatives.

The answer depends upon your specific immigration benefit and timing.

---

47. I Am From Syria. Does This Decision Affect Me?

Potentially.

Syria became part of the expanded framework and may have been affected by adjudication holds and enhanced vetting.

Immigration Benefits Freeze Litigation Resource Directory

The Definitive Collection of Court Documents, Government Sources, USCIS Memoranda, Travel-Ban Proclamations, Media Coverage, and HLG Analysis

One of the biggest challenges for immigrants trying to understand this case is that information is scattered across court filings, government memoranda, presidential proclamations, advocacy organizations, and media reports.

This resource directory brings together the most important sources in one place.

Whether you are:

• an immigrant affected by the policies;
• a family member;
• an employer;
• a journalist;
• an immigration lawyer;
• a researcher;

these are the documents that matter most.

Section 1: Court Documents

Federal Court Opinion (Rhode Island)

Dorcas International Institute of Rhode Island v. USCIS

The full federal court opinion issued by Chief Judge John J. McConnell Jr.

This is the most important document in the case and should be read by anyone seeking to understand the court’s reasoning.

https://democracyforward.org/wp-content/uploads/2026/06/16112511402.pdf

---

Federal Complaint

The complaint explains:

• how the challenged policies operated;
• which immigrants were affected;
• the legal arguments raised by plaintiffs;
• the factual record underlying the lawsuit.

https://democracyforward.org/wp-content/uploads/2026/03/26-cv-132-Dorcas-et-al-v-USCIS-et-al-ECF-1-Complaint-with-attachments.pdf

---

Democracy Forward Case Page

Case updates, filings, announcements, and litigation developments.

https://democracyforward.org/work/legal/challenging-unlawful-policies-targeting-immigrants-based-on-country-of-origin/

Section 2: USCIS Memoranda at the Center of the Litigation

PM-602-0192

Pending Applications from High-Risk Countries

This memorandum created the framework for:

• Benefits Hold Policies;
• Asylum Hold Policies;
• Re-Review Procedures;
• Country-Specific Factors.

It became the centerpiece of the Rhode Island litigation.

USCIS Memorandum:

https://www.uscis.gov/sites/default/files/document/policy-alerts/PM-602-0192-PendingApplicationsHighRiskCountries-20251202.pdf

HLG Analysis:

https://www.lawfirm4immigrants.com/frozen-files-uscis-pm-602-0192-freeze/

---

PM-602-0194

Additional High-Risk Countries Guidance

Expanded and clarified nationality-based review procedures.

USCIS Memorandum:

https://www.uscis.gov/sites/default/files/document/policy-alerts/PM-602-0194-PendingApplicationsAdditionalHighRiskCountries-20260101.pdf

---

PM-602-0199

Adjustment of Status and Discretion

Although not directly challenged in the Rhode Island case, PM-602-0199 represents another major USCIS policy development involving discretion and heightened scrutiny.

USCIS Memorandum:

https://www.uscis.gov/sites/default/files/document/memos/PM-602-0199-AdjustmentOfStatusAndDiscretion-20260521.pdf

HLG Analysis:

Will USCIS Deny My I-485 Under the New 2026 Memo?

https://www.lawfirm4immigrants.com/will-uscis-deny-my-i-485-under-the-new-2026-memo-what-green-card-applicants-need-to-know-about-the-new-uscis-discretion-policy/

What Happens If Your Adjustment of Status Is Denied?

https://www.lawfirm4immigrants.com/what-happens-if-your-adjustment-of-status-is-denied-the-real-risks-facing-green-card-applicants-under-the-new-uscis-i-485-memo/

Section 3: Presidential Travel-Ban Proclamations

June 2025 Travel Ban

Presidential Proclamation 10949 established the initial framework for country-specific immigration restrictions.

December 2025 Expansion

Presidential Proclamation 10998 expanded travel restrictions and significantly increased the number of affected countries.

NAFSA Travel Ban Analysis

One of the most comprehensive summaries of the expanded travel-ban framework.

https://www.nafsa.org/regulatory-information/proclamation-december-16-2025-travel-ban-effective-january-1-2026

Section 4: Government Resources

USCIS

Official USCIS Website

https://www.uscis.gov

---

USCIS Case Status

https://egov.uscis.gov

---

USCIS Processing Times

https://egov.uscis.gov/processing-times/

---

USCIS Policy Manual

https://www.uscis.gov/policy-manual

Section 5: National Media Coverage

Reuters

U.S. Judge Invalidates Trump Policies Targeting Immigrants from 39 Countries

https://www.reuters.com/world/us-judge-invalidates-trump-policies-targeting-immigrants-39-countries-2026-06-05/

One of the most detailed and influential reports on the decision.

---

The Hill

Immigration Applications Freeze Vacated by Federal Court

https://thehill.com/regulation/court-battles/5912086-immigration-applications-trump-policies-vacated/

---

Wall Street Journal

Judge Strikes Down Trump Administration Freeze on Immigration Benefits

https://www.wsj.com/politics/policy/judge-strikes-down-trump-administration-freeze-on-immigration-benefits-a21a272a

---

CBS News

Judge Blocks Trump Administration Immigration Benefit Restrictions

https://www.cbsnews.com/news/trump-legal-immigration-cases-judge-blocks/

Section 6: HLG Travel-Ban and Benefits-Freeze Resources

Frozen Files: How Trump’s PM-602-0192 Quietly Halts USCIS Cases for Millions

https://www.lawfirm4immigrants.com/frozen-files-uscis-pm-602-0192-freeze/

---

Can Trump Legally Freeze Asylum and Immigration?

https://www.lawfirm4immigrants.com/can-trump-legally-freeze-asylum-and-immigration/

---

5 Critical Changes in the Post-Shooting Immigration Crackdown

https://www.lawfirm4immigrants.com/post-shooting-immigration-crackdown/

---

Impact of the D.C. Shooting on Afghan SIV, Parole, and Asylum Cases

https://www.lawfirm4immigrants.com/impact-of-dc-shooting-on-afghan-siv-parole-asylum/

---

Can Rescreening Increase Deportation Risk?

https://www.lawfirm4immigrants.com/rescreening-increase-deportation-risk/

---

5 Key Insights on USCIS Vetting Center High-Risk Countries and Social Media Screening

https://www.lawfirm4immigrants.com/uscis-vetting-center-high-risk-countries-social-media-screening/

---

N-400 Approved? Oath Ceremony Delays and Re-Interview Risks

https://www.lawfirm4immigrants.com/n-400-approved-oath-ceremony-cancelled/

---

Psychological Effects of Immigration Waiting

https://www.lawfirm4immigrants.com/psychological-effects-of-immigration-waiting/

Section 7: Additional Immigration Delay Resources

Mandamus Litigation

If your case remains delayed despite the Rhode Island decision, federal litigation may be an option.

Recommended topics to research:

• Writ of Mandamus;
• Administrative Procedure Act claims;
• Unreasonable delay litigation;
• USCIS adjudication delays.

---

Adjustment of Status

For applicants concerned about the new USCIS discretion framework:

https://www.lawfirm4immigrants.com/will-uscis-deny-my-i-485-under-the-new-2026-memo-what-green-card-applicants-need-to-know-about-the-new-uscis-discretion-policy/

Why This Resource Directory Matters

One of the recurring themes throughout this case is transparency.

The plaintiffs argued that immigrants were subjected to policies many people never knew existed.

The court repeatedly criticized the lack of lawful authority supporting those policies.

By making the primary documents available, immigrants can review the evidence for themselves rather than relying solely on media summaries or social-media commentary.

That transparency is especially important now, because appeals, new policies, and additional litigation are likely still ahead.

Final Analysis: The Bigger Story Behind the Rhode Island Decision

At first glance, this case appears to be about travel bans.

It is not.

At its core, this case asks a more fundamental question:

Can USCIS accept an application, collect a filing fee, process the paperwork, and then simply refuse to make a decision because of where the applicant was born?

Judge McConnell’s answer was no.

That conclusion may ultimately affect far more than the 39 countries involved in this litigation.

It may shape future challenges involving:

• adjudication delays;
• security-review backlogs;
• nationality-based scrutiny;
• discretionary immigration decisions;
• administrative law limits on USCIS authority.

The long-term impact of the case may extend well beyond the travel-ban era itself.

And for thousands of immigrants who spent months—or years—waiting for answers, that may be the most important legacy of all.

 

 

Richard Herman’s Analysis: Why This Case Matters Far Beyond Travel Bans

After more than 30 years representing immigrants, employers, students, families, refugees, and asylum seekers, I have learned that the most damaging immigration decisions are not always denials.

Sometimes the most damaging decision is no decision at all.

That is why the Rhode Island ruling may ultimately become one of the most important immigration cases of the Trump 2.0 era.

Most media coverage has framed this as a travel-ban case.

I believe that misses the bigger story.

The travel bans are important.

The affected countries are important.

The national-security arguments are important.

But the larger issue is something much more fundamental:

Can USCIS accept an immigration application, collect the filing fee, process the paperwork, and then simply refuse to make a decision because of the applicant’s nationality?

Judge McConnell’s answer was no.

And that answer could have consequences that extend far beyond the specific policies challenged in this lawsuit.

The Real Issue Was Never Just Travel

For many Americans, travel bans affect people trying to enter the United States.

The immigrants affected by this case were often already here.

Many had done exactly what our immigration system encourages people to do.

They:

• followed the rules;
• filed applications;
• paid filing fees;
• attended biometrics appointments;
• responded to government requests;
• waited patiently.

Yet many found themselves trapped in a system where their cases simply stopped moving.

Not approved.

Not denied.

Just frozen.

That reality is what appears to have troubled the court most.

The opinion repeatedly returns to themes of fairness, legality, and the obligation of government agencies to follow the laws enacted by Congress.

Why Immigrants Should Pay Attention Even If They Are Not From a Travel-Ban Country

One reason I believe this case is so significant is that its impact may extend well beyond the countries listed in the travel bans.

The court’s reasoning touches on issues that affect immigrants from every country:

Government Delays

Can USCIS indefinitely postpone adjudication?

Administrative Power

Can agencies create new barriers through internal memoranda?

Due Process and Fairness

What protections exist when government action departs from established legal standards?

Judicial Oversight

When will federal courts intervene?

These questions are not limited to nationals of designated countries.

They affect the entire immigration system.

My Predictions

While no one can predict the future with certainty, I expect several developments.

Prediction #1: The Government Will Appeal

The administration invested significant political and legal capital in these policies.

An appeal is highly likely.

---

Prediction #2: We Will See More Litigation Over Immigration Delays

The court repeatedly emphasized that USCIS has an obligation to adjudicate cases.

That principle may encourage more immigrants to challenge extraordinary delays through federal litigation.

---

Prediction #3: USCIS Will Attempt to Replace Some of These Policies

History suggests that agencies rarely abandon major initiatives entirely.

Instead, they often revise, narrow, or repackage them.

Future policy memoranda should be expected.

---

Prediction #4: This Case Will Be Cited in Mandamus Litigation Across the Country

Immigration lawyers challenging unreasonable delays will likely rely on portions of Judge McConnell’s opinion for years to come.

The decision contains powerful language regarding the government’s responsibility to make decisions rather than simply leave cases unresolved.

---

Prediction #5: This Case May Become More Important Than the Travel Bans Themselves

Years from now, lawyers may remember this case less for the specific countries involved and more for the broader principle it established:

Government agencies cannot create a third category of immigration adjudication.

Congress authorized approvals.

Congress authorized denials.

The Rhode Island court concluded that Congress did not authorize indefinite nationality-based limbo.

That principle could shape immigration law long after the travel bans themselves are forgotten.

What Immigrants Should Do Right Now

If you are from one of the affected countries—or if your case has experienced unusual delays—you should not panic.

You should also not ignore developments.

Instead:

Review Your Case History

Look carefully at:

• filing dates;
• USCIS notices;
• requests for evidence;
• periods of inactivity.

---

Monitor Case Updates

USCIS may begin moving some cases affected by the challenged policies.

Watch for:

• interview notices;
• biometrics notices;
• RFEs;
• approvals;
• denials.

---

Preserve Documentation

Keep copies of:

• filing receipts;
• USCIS correspondence;
• case status screenshots;
• evidence submissions.

These records may become important if litigation becomes necessary.

---

Seek Legal Advice When Appropriate

Immigration law is changing rapidly.

Travel bans, adjudication freezes, nationality-based vetting, social-media screening, and the new Adjustment of Status discretion framework have created a level of complexity many immigrants have never experienced before.

Individual legal advice matters.

Richard Herman’s Bottom Line

After reviewing the court’s opinion, the complaint, the USCIS memoranda, the travel-ban proclamations, and the administration’s public statements, my conclusion is straightforward:

This case is about more than travel bans.

It is about whether government agencies can create a third category of immigration adjudication:

1. Approved.
2. Denied.
3. Frozen indefinitely.

Judge McConnell concluded they cannot.

Whether the First Circuit ultimately agrees remains to be seen.

But for thousands of immigrants who spent months—or years—waiting for answers, this decision represents an important reaffirmation of a simple principle:

People who follow the rules, file applications, pay the fees, and wait their turn deserve decisions based on the law—not on the happenstance of where they were born.

 

 

Need Help Understanding How This Decision Affects Your Case?

If you believe your immigration case may have been delayed, frozen, re-reviewed, or subjected to enhanced scrutiny because of the travel bans, PM-602-0192, PM-602-0194, nationality-based vetting procedures, or related USCIS policies, it is important to obtain individualized legal advice.

The immigration attorneys at Herman Legal Group are closely monitoring:

• the Rhode Island litigation;
• any appeal to the First Circuit;
• developments involving PM-602-0192;
• developments involving PM-602-0194;
• the new USCIS Adjustment of Status memo PM-602-0199;
• travel-ban implementation;
• nationality-based vetting programs;
• USCIS delay litigation and mandamus actions.

Whether your case involves:

• a marriage-based green card;
• employment-based immigration;
• citizenship;
• asylum;
• humanitarian relief;
• or a long-delayed USCIS application,

our team can help evaluate your options and develop a strategy tailored to your situation.

Schedule a Consultation

Herman Legal Group — The Law Firm for Immigrants®

📞 +1-216-696-6170

🌐 https://www.lawfirm4immigrants.com

Offices throughout Ohio and representation nationwide in federal immigration matters.

 

The benefits-freeze litigation should also be read alongside the court fight over the 75-country immigrant visa pause.