Advertise on podcast: The Maze: A Podcast about US Immigration Law

This is Episode 39A. There is more on this topic with Episode 39B, coming shortly...! This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit webberimmigration.substack.com/subscribe

* How did we get here? * Populist policy making for 25+ years both on the populist LEFT versus populist RIGHT. * Traditionally in the United States, going back many years, the idea was legal immigration = good; illegal immigration (irregular migration) = bad * Clinton (1993 to 2000) - * Internet tech boom and Y2K * AC21 became law in Oct 2000. The high point of EB immigration in the United States. Democratic Party President + US House and US Senate controlled by Republicans. * W. Bush (2001 to 2008) - * 9/11 Terrorism * CSPA * Chile/Singapore H-1B1 * Australia E-3 * STEM OPT created * TNs go from 12 months to 36 months * Obama (2009 to 2016) - * Healthcare and the Great Financial Recession * DACA - June 2012 * The first major executive action to make ILLEGAL into LEGAL. * AC21 Regulations - Nov 2016, effective Jan 17, 2017 * Matter of Dhanasar - Dec 2016 * Trump I (2017 to 2020) - * Tax Cuts and China Tariffs and Covid * Lots of push back on EB immigration * Biden (2021 to 2024) - * Post-Covid stimulus, inflation * Border policy * Many executive actions to make ILLEGAL into LEGAL. * Trump II (2025 to present) - * The era of AI * Many executive actions to make LEGAL into ILLEGAL. * F-1 and J-1 status limitations. * F-1 and J-1 and H-1B visa processing challenges and backlogs. * Proposals to increase fees for F-1 OPT and STEM OPT, and H-1Bs, and eliminate H-4 EADs and the H-1B/non-immigrant grace period. This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit webberimmigration.substack.com/subscribe

* Quotas (annual limits): Non-immigrants versus immigrants * PERM labor certification versus PERM-exempt. * I-140 approval. * H-1B status beyond six years in 3 year increments. * Not available to L-1. * H-4 EAD work authorization. * Retention of priority date - * Upgrades; * Downgrades. This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit webberimmigration.substack.com/subscribe

* Overview of EB immigration options generally. a. Labor Market test. b. Exemption from Labor Market test. * Self-petition options (Exempt from Labor Market). * Employer options (Exempt from Labor Market). * Key Differences between EB-1A versus EB-1B. * General requirements. * Employer-sponsored. * “a department, division, or institute of a private employer if the department, division, or institute employs at least three persons full time in research activities and has achieved documented accomplishments in an academic field.” * University/Academic versus Private Sector. * “Ability to Pay.” * Regulatory criteria/EB-1 eligibility. * Three criteria + final merits (EB-1A) versus two criteria + final merits (EB-1B). * Original contributions of MAJOR significance (EB-1A) versus original contributions (EB-1B). * Comparative criteria. This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit webberimmigration.substack.com/subscribe

This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit webberimmigration.substack.com/subscribe

* Issues that Relate to Everyone: a. Temporary Visas. b. Strategies for U.S. Permanent Residence. * Physicians: a. Temporary Visas: J-1 clinical, J-1 research, H-1B, O-1. b. Strategies for U.S. Permanent Residence: Employer sponsorship, self-sponsorship (including P-NIW), marriage to a U.S. citizen. * Researchers: a. Temporary Visas: F-1, J-1 research, H-1B, O-1. b. Strategies for U.S. Permanent Residence: Employer sponsorship, self-sponsorship, marriage to a U.S. citizen. * The Visa Bulletin: a. Country of Birth versus Country of Citizenship. b. Cross-Chargeability. c. EB-1 versus EB-2. d. Priority Date Retention. This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit webberimmigration.substack.com/subscribe

* May 21, 2026, Policy Memo on Adjustment of Status as Administrative Grace (PM-602-0199): Here * “Failure to depart” as a negative discretionary factor. * August 15, 2025, Policy Memo on Good Moral Character Standard for Naturalization (PM-602-0188): Here * August 19, 2025, Policy Alert on Anti-Semitic/Anti-American Behavior as “overwhelmingly negative” discretionary factor (PA-2025-16): Here * September 4, 2025: Policy Memo (PM-602-0190): Related to Public Charges. * September 20, 2025: $100k H-1B Surcharge Memo. * November/December 2025 and Jan 1, 2026: Various memos pausing processing of DV lottery cases, asylum cases, and benefits for people of 39 “high-risk” countries * November 2020 Policy Memo on Discretionary Factors in Adjustment of Status: Here * Family and Community Ties - Positive: * Family ties to the United States and the closeness of the underlying relationships. * Hardship to the applicant or close relatives if the adjustment application is denied. * Length of lawful residence in the United States, status held and conduct during that residence, particularly if the applicant began his or her residency at a young age. * Family and Community Ties - Negative: * Absence of close family, community, and residence ties. * Immigration Status History - Positive: * Compliance with immigration laws and the conditions of any immigration status held. * Approved humanitarian-based immigrant or nonimmigrant petition, waiver of inadmissibility, or other form of relief and the underlying humanitarian, hardship, or other factors that resulted in the approval. * Immigration Status and History - Negative: Violations of immigration laws and the conditions of any immigration status held. * Current or previous instances of fraud or false testimony in dealings with USCIS or any government agency. * Unexecuted exclusion, deportation, or removal orders * Business, Employment, and Skills - Positive: * Property, investment, or business ties in the United States. * Employment history, including type, length, and stability of the employment. * Education, specialized skills, and training obtained from an educational institution in the United States relevant to current or prospective employment and earning potential in the United States. * Business, Employment, and Skills - Negative: * History of unemployment or underemployment. * Unauthorized employment in the United States. * Employment or income from illegal activity or sources, including, but not limited to, income gained illegally from drug sales, illegal gambling, prostitution, or alien smuggling * Community Standing and Moral Character - Positive: * Respect for law and order, and good moral character (in the United States and abroad) demonstrated by a lack of a criminal record and evidence of good standing in the community. * Honorable service in the U.S. armed forces or other evidence of value and service to the community. * Compliance with tax laws. * Current or past cooperation with law enforcement authorities. * Demonstration of reformed or rehabilitated criminal conduct, where applicable. * Community service beyond any imposed by the courts. * Community Standing and Moral Character - Negative: * Moral depravity or criminal tendencies (in the United States and abroad) reflected by a single serious crime or an active or long criminal record, including the nature, seriousness, and recent occurrence of criminal violations. * Lack of reformation of character or rehabilitation. * Public safety or national security concerns.[43] * Failure to meet tax obligations. * Failure to pay child support. * Failure to comply with any applicable civil court orders. * Other - Positive * Absence of significant undesirable or negative factors and other indicators of good moral character in the United States and abroad. * Other - Negative * Other indicators adversely reflecting the applicant’s character and undesirability as an LPR of this country. Practical Tips: * When in the United States, act consistently with the visa issued to you. * If you enter on a temporary visa, particularly ESTA/Visa Waiver, a B visa, an F visa, or a J visa, understand your intent for that admission is temporary. * Regarding I-140 and I-130 preparation - plan for immigrant visa processing unless you have a truly dual intent visa (H-1B/H-4, or L-1/L-2). * Almost dual intent (TN, H-1B1, R-1, O-1, E-1/E-2/E-3) versus truly dual intent (H-1B/H-4, or L-1/L-2). If you are reading this before June 17, then here is a Shameless Plug to seek your vote for the Immie Award as People’s Choice Thought Leader: https://www.buildfellowship.com/immies-2026/nominee/robert-webber This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit webberimmigration.substack.com/subscribe

* Felonious Gru and the Freeze Ray. * USCIS Pause Policies: * 39 Countries full pause. * 75 Countries - immigrant visa processing pause. * Visa Bulletin Cut-Off Dates. * Fiscal year starts October 1. * Two Charts: Chart B early in the Year, then Chart A. * India, China, RoW (Rest of World), Mexico EB-3, Philippines EB-3 * “C” (Current) versus “U” (Unavailability) * The importance of Spillover and the lesson of October 2020. * June 2026 Visa Bulletin. End Note D: Preparing - * International travel. * Documents - Birth and Marriage records. * Medical exams. This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit webberimmigration.substack.com/subscribe

* U.S. Citizens: Passport cards and I-130s. * Green Card Holders: Copies of green cards and re-entry permits. * People in the United States on Temporary Visas: * Caution in international travel. * Visa processing - scrutiny on social media and political views. * Pause policies implicating 39 countries + “List of 75 Countries” * Challenges in Obtaining an approved I-140: * Slow PERM. * High rate of denials for EB-2 NIW. * High rate of denials for EB-1A. * The appeal of EB-1B and EB-1C. * H-1B cap changes, H-1B layoffs. * F-1s This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit webberimmigration.substack.com/subscribe

* What is PERM? * What is EB-2 NIW? This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit webberimmigration.substack.com/subscribe

After October 2025 Visa Bulletin is issued, no movement on cut-off dates for Chart B for November 2025 Visa Bulletin, then December 2025 Visa Bulletin. * Will dates move forward in January, or will USCIS honor Chart A? * The value of an I-824 for optionality. Bob’s chart tracking October Visa Bulletin Chart B for EB-2 Rest of World (RoW), going back to 2022: This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit webberimmigration.substack.com/subscribe

[EDIT: This podcast episode has erroneously information on the November 2025 EB-3 cut-off date. I realized the error after completing the podcast. The date for December 2025 EB-3 India is correct. I was just wrong in how much the dates moved from November to December. I regret the error.] The US Department of State has issued the December 2025 Visa Bulletin. The December 2025 Visa Bulletin can be found here. This Chart shows the movement for Employment-Based (EB) cut-off dates for Chart A. There was no movement for EB cut-off dates for Chart B. USCIS is honoring Chart B for filing new I-485 applications for December 2025, but it might be the last month this fiscal year that USCIS is honoring Chart B. People whose priority date is current per Chart B should be sure to file I-485 applications in December or risk being unable to file in January. This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit webberimmigration.substack.com/subscribe

* The Basics: EB-2 + NIW. * Matter of NYSDOT. * Matter of DHANASAR (December 2016). * Biden “force multiplier” memos (January 2021). * Pigs get fat, hogs get slaughtered. * The role of the H-1B cap lottery. * The role of slow processing of PERM labor certification applications. * The role of the Visa Bulletin. * Rolling recessions and white collar job losses. * The role of gurus and shaman and AI toolkits. * January 2025 Policy Guidance. * Premium versus regular processing. * RFEs, denials, appeals, litigation. This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit webberimmigration.substack.com/subscribe

* Job changes for people on temporary visas versus permanent resident (green card processing). * Job changes and priority date retention (I-140 approved) but no I-485 pending. * Job changes after I-485 filed: Adjustment of Status (AoS) job portability. * EB-1A and EB-2 NIW exempt. * EB-1B and EB-1C, plus EB-2 PERM and EB-3 eligible. * I-140 approved. * I-485 pending 180+ days. * “Same or similar occupation.” * USCIS guidance here. * ONET code crosswalk: Here. * AC21 AoS portability versus Visa Bulletin 2 charts. * Supplement J: https://www.uscis.gov/i-485supj * USCIS policy manual on job portability (job changes) here. This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit webberimmigration.substack.com/subscribe

* EB immigration (I-140) versus FB immigration (I-130) * EB immigration has EB-1 and EB-2 and EB-3 versus FB immigration has F-1, F-2A, F-2B, F-3, F-4, but importantly FB immigration has “immediate relative.” * The perks of “immediate relative” status - * No Visa Bulletin limits. * Potential ‘forgiveness’ for overstay and work without authorization. * Who are immediate relatives? * Spouses of US citizens. * Unmarried children under the age of 21. * Parents of US citizens, when the US citizen is at least 21 years old. * Spouses of US citizens are subject to “conditional” permanent residence if married less than 2 years, to prevent fraud. * Note that spouses of US permanent residents are NOT immediate relatives, they are F-2A immigrants. * Spouses of EB immigrants who are married prior to EB green card approval are derivative of the EB case - either as I-485 applicants or “follow-to-join” immigrant visa applicants; but spouses of permanent residents are F-2A immigrants subject to the Visa Bulletin. * November 2025 Visa Bulletin (Chart A for FB Immigration): * Note that adopted children and step-children have special considerations on eligibility which need to be analyzed carefully on whether they qualify as “immediate relatives.” * Note that a US citizen who has a child outside the United States - that child MIGHT be a US citizen at birth and eligible for a US passport. * FB immigration begins with an I-130 petition (relative petition), filed with USCIS. Premium processing is NOT available. * The FB immigrant is potentially eligible for I-485 adjustment of status or immigrant visa processing at a US consulate in the relatives’ home country. * Key issue in the I-130 is documenting the relationship with qualifying documentation of the legal marriage or birth. * An I-130 filing demonstrates immigrant intent. * Entering on a visitor visa or F-1 visa or J-1 visa is entering the United States on a temporary visa with temporary intent. This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit webberimmigration.substack.com/subscribe