Webinar: "Trump 2.0 Tuesday Update With Jennifer Behm"

The first came down yesterday. A federal court ruling struck down the one hundred thousand dollar H-1B fee yesterday. So I’ll dove into that. I’m also going to talk about USCIS’s new discretionary standards for adjustment of status applicants. That was following a policy that was issued a few weeks ago. And the third item I’m going to cover is a recent federal court decision blocking the indefinite freeze on immigration applications and asylum processing. It’s a pretty big deal and impacts a lot of immigration applicants in the United States.

So first, let’s cover the federal court vacating the one hundred thousand dollar H-1B fee. That ruling came down yesterday on June eighth. But to give some background context on that, you might remember In September of twenty twenty five last year, the Trump administration imposed a one hundred thousand dollar fee on H-1B applications through a presidential proclamation. This had a really big impact on companies that recruit abroad and even for our cross-border health care clients who hire from Canada. We have a lot of Canadians who hold H-1B status that cross the border every day. So when this dropped, there was a lot of frenzy. And over the following months, twenty state attorney generals challenged it. And yesterday, a federal judge in Boston agreed with them.

Diving into that decision, the court struck down the one hundred thousand dollar fee on two independent grounds. The first is that they determined it’s a tax. The court found that that payment is not a regulatory fee. And in the constitution, the power to levy taxes rests with Congress, not the president and the executive branch. So the government said, this is a regulatory payment. You cannot do that. And the court didn’t buy it.

The second ground that they struck it down one was that it was a violation of the APA or the administrative procedure act. The court said that agencies have to give careful consideration to major policy changes like imposing a one hundred thousand dollar fee on H-1B applications and that a presidential proclamation is not a proper substitute for the requirement of notice and comment periods that is required by the APA. The federal court said that agencies failed to adequately address concerns about the impact on education and public universities research institutions, healthcare systems, and they did not consider whether that fee or tax should be narrowed for nonprofits, schools, or healthcare employers.

So what’s the impact on our clients? Well, because the decision vacates the fee under the APA, it does have a nationwide impact. USCIS cannot collect that one hundred thousand dollar fee from any employer right now. However, the ruling does not mean that this issue is resolved and done with. The government’s expected to quickly appeal and request a stay. President Trump has made comments that he’s very upset with the federal courts and they’re making everything he’s trying to do on immigration restrictions much more difficult. So if they appeal and a stay is granted, USCIS could technically reimpose the fee during this process. There’s also a conflicting December, twenty twenty five ruling from Washington, D.C. District Court that did uphold the fee. So the circuit split makes this stay probably a little more likely, not less.

Also, the decision that came yesterday doesn’t address possible refunds for fees already paid. So don’t assume you’re getting money back. And any petitioner or H-1B applicant should know that if a stay is issued mid process, the one hundred thousand dollar fee could be back in place. So what’s the takeaway? We’re uncertain with USCIS filing acceptance processes. They have not issued any guidance following this decision yesterday. We anticipate there could be RFEs, especially if USCIS says, hey, we’re going to demand this fee after this court case. Again, we’re going to see some ping pong on this issue. And petitioners should know that this policy Taking away the one hundred thousand dollar fee could be retroactive if the decision is reversed on appeal. So still watching this one very closely. If you have any questions about filing an H-1B petition for someone outside of the United States who was impacted by the fee but may not be today, give us a buzz. We’ll walk you through some of those considerations.

All right. Onto topic number two. the USCIS Adjustment of Status Policy Memo. So back on May, the Friday afternoon before the Memorial Day weekend, because that never fails in immigration in our industry, USCIS issued a policy that impacts adjustment of status applicants. I’m going to read the name of that title because the name of the policy is a massive decision, a massive message in and of itself. The policy was called adjustment of status is a matter of discretion and administrative grace and an extraordinary relief that permits applicants to dispense with the ordinary consular visa process. What a mouthful.

So basically the agency said that USCIS, US Citizenship and Immigration Services, which they are an agency in the United States that adjudicates adjustment of status or green card applications, they’re only going to approve them in extraordinary circumstances. So rightfully so, this caused a ton of alarm across applicants and lawyers because it’s coming out of left field.

For some foundation and understanding, there’s two ways applicants can complete the green card process. One is called adjustment of status. That’s what this memo targets. And that’s filed with a form called I- four eighty five. And it lets a foreign national who’s already here in the United States get a green card without leaving. They may need to go for an interview. They fill out a twenty five page application. They have some sort of underlying grounds to apply for that benefit while they’re here in the United States.

By contrast, the other method for pursuing a green card is called consular processing or immigrant visa processing. And that’s where an applicant is already abroad, or it’s for applicants who may need to maintain international travel during the green card process. And they leave the United States to attend a final immigrant visa interview at a US embassy or consulate in their home country.

For most employer sponsored clients, adjustment of status is a preferred path because it keeps their employee here in the United States and Ultimately, at the end of the day, a foreign national who departs the U.S. has no absolute guaranteed right of reentry. Additionally, earlier last year, the Trump administration put a ban on immigrant visa processing for foreign nationals of about seventy countries. So this new policy that came out really put a lot of foreign national individuals in a catch-twenty-two position.

The memo doesn’t change the law. It doesn’t eliminate any underlying category for which someone may be eligible to file an adjustment of status. But it was effective immediately and it applied to all pending and future filed adjustment applications. And the memo directs USCIS officers to apply a higher level of scrutiny in cases where an applicant’s conduct appears inconsistent with the purpose of their initial admission, whether that was an H-1B status, whether it was as a TPS, temporary protected status. And the memo flagged that failure to depart after the purpose of their admission concluded was an adverse discretionary factor.

So if your L-1 status is expiring on June thirtieth, but you filed an adjustment of status application and you didn’t depart, Is that an adverse discretionary factor? Well, that’s what attorneys and applicants and employers were wondering. Because the vast majority of routinely filed adjustment cases, family-based, employment-based, they sit within the discretionary universe this memo governs. So it’s very alarming.

The memo also stated that the absence of adverse factors standing alone is not sufficient to warrant approval. So what is the advice we’re giving our clients? Well, if you’re an employer, you definitely don’t want to allow your sponsored employees to let their non-immigrant status lapse when possible. Sometimes it’s inevitable, but you really want to prioritize timely underlying extensions for your H-1B your L-1 employees, those who hold dual intent.

Prior to filing an adjustment of status, we’re also looking at status expirations for our clients and making sure that, well, maybe before filing an AOS, let’s renew underlying status first. This isn’t always possible, but it’s something that’s really wise and trying to put adjustment of status applicants in a stronger immigration position.

Without getting into the weeds of work authorization, sometimes applicants and employers allow their adjustment applicants to rely on an interim issued employment authorization document, EAD, which is a tandem benefit that can be requested for someone when filing an adjustment of status application. And if you’re letting underlying status lapse and relying on that EAD to work, that may be one of those negative factors that USCIS is not really convinced by. So we’re looking more closely and strategizing risk assessments for those situations.

Overall, for applicants, we are advising them to include documentation that would show favorable consideration. Why should the government approve their adjustment of status application, filing federal and state taxes, maintaining employment, making sure there’s no gaps or violation in immigration history. For our clients who have kids going to school here, including school records, How would having to go abroad be a major disruption to applicants who would otherwise have the ability to file an adjustment of status application? Are there any other special considerations like medical considerations, doctor’s appointments? Are applicants involved in the community? So we’re pulling together lots of evidence and really including a supplementary package for our adjustment clients and building that narrative upfront when appropriate.

One thing I want to mention, the law and regulations governing adjustment of status, despite this memo, the law has not changed. This is all driven by policy. So those who were, those who have pending applications, and those who are statutorily eligible to file an adjustment of status application, they remain eligible to do so. We just might see an increase in requests for evidence, maybe a call for more interviews before the final green card is issued. So you want to go in and file an adjustment of status application very strategically. And maybe now is not the time to try a DIY case. Talk to a lawyer before you file anything with the government.

Okay. Onto our final topic, the third one, the federal court blocking a sweeping pause on legal immigration for nationals of thirty nine countries. So this one came down just on Friday. You might have seen headlines saying a court blocked the travel ban. That’s not entirely accurate, and I want to clear that up a little bit. The travel ban from the Trump administration’s earlier proclamations in June of twenty twenty five is still in effect. What the court did was a little bit different, but it does have an immediate significant impact on people with pending filings, again, with USCIS or U.S. Citizenship and Immigration Services. That’s the agency that is here in the United States reviewing immigration benefits.

So let me set the foundation and bring you back to June last year. President Trump issued several proclamations that had a pretty big impact in the immigration world. The first one was issued in June and that restricted entry for nationals of nineteen countries and then it expanded to thirty nine countries through another proclamation in December of twenty twenty five. There was also another proclamation that imposed a hold and a nationwide asylum pause on that hold to all thirty nine countries.

So in practice, This froze USCIS benefits for nationals of those thirty nine countries, regardless of whether they had completed interviews, biometrics appointments, background checks. And what’s been happening is that cases are sitting indefinitely. There are no decisions being made despite applicants paying hundreds, sometimes thousands of dollars in fees. USCIS had said officers must treat those nationals from those certain countries as a significant negative factor in green card and work permit adjudications.

Okay, so fast forward to this Friday, June fifth, 2026, and a federal court judge in Rhode Island issued a pretty lengthy one hundred thirty five page ruling vacating for USCIS policies. So the plaintiffs of this case challenged four of them. The first was a challenge on the global asylum hold, which halted all asylum and withholding of removal adjudications, regardless of country of origin.

The second policy froze the processing of green cards, work permits, and other benefits for nationals of those travel banned countries that I just mentioned. There was another policy, let’s call that the comprehensive re-review policy that required USCIS to re-examine already approved benefits for travel banned country nationals who entered the United States on or after January, of . And then the fourth policy issued in this lawsuit or raised in this lawsuit was one that directed USCIS officers to treat an applicant’s country of origin as a significant negative factor in discretionary benefit decisions.

So pretty big policies that the Trump administration had rolled out last year that are now kind of coming to a head. What did the court say? The court said that across the board, USCIS exceeded its statutory authority and again, violated the APA. And the court said, look, these powers are they rest with Congress, not the president and failing to justify the, that the Trump administration, the executive branch failed to justify these policies failed to account for, um, the stakeholder interests and that it was inconsistent with immigration statutes.

So pretty big ruling, um, it’s setting the stage for USCIS to resume the adjudication of non-immigrant petitions, work permits, green card applications and other benefits requests for affected individuals. So if you have clients or you are an individual, if you have employees or you are an individual from one of those thirty nine designated countries with frozen pending cases, in theory, those cases should move forward.

What we don’t know, how fast will USCIS act? There’s no implementation guidance. No announced processing timeline. We’ll probably see an appeal. And I wouldn’t be surprised if this eventually makes its way up to the Supreme Court. The Trump administration put all of those policies in place in the name of national security. A lot of those came out. You might remember I had done a webinar several months ago when there was a shooting of two National Guard officers. Very, very tragic. And that’s what put a lot of these policies in place in the name of national security. The court didn’t buy it. Will we see it go up to the Supreme Court? I think it remains a pretty realistic probability.

So we’ll see what happens. We’re watching that one closely, but I’m keeping my fingers crossed that we will see cases that have been sitting move forward for some of those foreign nationals that were subject to the pretty widespread immigration pause.

All right, so let’s tie it all together, right? Courts are pushing back on executive overreach across multiple immigration fronts. They’re pushing back on fees, the one hundred thousand dollar fee courts are pushing back on adjustment of status discretion. We’re seeing court push back on benefits adjudication policy. This is significant, right? But in all of these situations, we’re going to see appeals. We’re going to see a ping pong match. Stays are possible, which means that we could be right back to where we started. We’re not seeing agency guidance come out after these court determinations. So lots to keep watching.

Please stay tuned. We are here with Barclay Damon every Tuesday. Tune in, hit subscribe to our YouTube channel, and thank you all for joining. None of this is over, so I am sure we will be back in another discussion with another update. Enjoy your lunch. Have a great afternoon and follow along with us on LinkedIn for continued updates.