US Immigration News

In the typical employment-based permanent residence (commonly, “green card”) case, the second stage of the three-stage process is the employer’s Immigrant Petition for Alien Worker, filed on the I-140 form. One of the essential aspects of the I-140 is the requirement that the sponsoring employer demonstrate an ability to pay (ATP) the proffered wage. This requirement can be a challenging element in some I-140 petitions. However, there are steps that petitioning employers can take to identify and address ATP concerns, and to increase the chance the U.S. Citizenship and Immigration Services (USCIS) will approve the I-140 petition.

General Ability to Pay Requirements

A petitioner or employer filing the I-140 typically must prove that it can pay the offered wage indicated on the PERM labor certification. The USCIS, in making a decision on the I-140 petition, requires the employer to establish the financial ability to pay this wage as of the date the PERM labor was filed, which is also referred to as the “priority date.” The USCIS expects the petitioner to provide financial documents that evidence this ATP, generally in the form of annual reports, tax returns, and/or audited financial statements. However, certain other types of records may suffice, depending upon the circumstances.

Employee Working for Petitioning Employer is Helpful

The easiest way for a petitioner to demonstrate its ATP is through evidence that the sponsored worker has been employed by the petitioner since the filing of the PERM labor, earning a salary that is equal to, or greater than, the offered wage. While this is not required, W-2s and paystubs indicating that this salary has been paid since the priority date typically is sufficient to establish a company’s ATP. If the petitioner has not paid the offered wage since first filing the case, the employer can demonstrate its ATP through documents that prove that the company’s net income or net current assets were equal to, or greater than, the offered wage for each of the required years, or show that it could pay the difference between the proffered wage and the wages that were actually paid to the foreign national.

ATP Requirement Extends Until the GC is Approved

If the USCIS has any concerns about an employer’s ATP, the agency usually raises the issue when adjudicating the I-140 petition. However, the ATP requirement continues until the beneficiary is granted lawful permanent residence status. Therefore, although such questions are not typically raised at the I-485 (or consular processing) stage, the USCIS is technically permitted to require evidence of a petitioner’s ATP until the individual’s green card is approved.

Employer’s Low Net Operating Profits may Cause Complications

As explained above, the ATP begins on the date the PERM labor certification is filed with the U.S. Department of Labor. Complications can arise if, during the timeframe under review by the USCIS, the petitioner suffers even a single bad year financially. Similarly, a company may be consistently earning a modest profit, but not quite enough to clearly show it could cover the beneficiary’s proposed salary. This, too, could lead to problems and, potentially, denials.

When reviewing year-end financials, employers should plan for how both the employer’s tax return and the sponsored employee’s final Form W-2 will document the ability to pay the offered wage for that year.

Employer May Need to Show ATP for all Sponsored Employees

Other related complications can arise when an employer has a large number of I-140 filings, relative to the size and financial strength of the company. In such a situation, it is common for the USCIS to ask for the company’s ATP for all of the sponsored foreign nationals. There are potential legal arguments to address ATP concerns that may be available to the petitioning company in these cases. The success depends upon fact-specific matters and analysis. Thus, if there is uncertainty about such matters based upon the company’s financial documents, it is important to review the matter and obtain advice from an experienced immigration attorney.

Conclusion

ATP issues must be addressed upfront in order to secure an I-140 approval and ultimately allow the foreign national worker to obtain permanent residence. Anticipating ATP complications and making preparations to address such problems can go a long way toward insulating the petitioning employer and employee from difficulties and denials related to ATP requirements. Employers facing ATP concerns are welcome to schedule a consultation with a Murthy Law Firm attorney.

While some aspects of immigration have changed in significant ways in the years since MurthyDotCom began publishing articles in 1994, there is much that is still the same. From time to time, we at the Murthy Law Firm refer our clients to articles, like this one, which has been updated for our readers.

 

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DHS finalized its 2025 rule without substantive changes. Most EAD renewals filed on or after Oct. 30, 2025 do not receive an automatic extension. This is not a new cutoff. More info.

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The U.S. Department of Homeland Security (DHS) has issued a proposed rule that would eliminate the regulation requiring U.S. Citizenship and Immigration Services (USCIS) generally to defer to an earlier eligibility determination when reviewing a Form I-129 filing involving the same parties and underlying facts. Under the current rule, USCIS generally gives deference unless there was a material error, a material change, or new adverse material information. The proposed change would affect benefit requests filed on Form I-129, including extensions of previously approved nonimmigrant worker petitions. Officers could still consider a prior approval, but would not be required to begin their review by deferring to it. The proposed rule is scheduled for publication in the Federal Register on October 14, 2026.

This is only a proposal. The existing deference regulation remains in place unless and until DHS finalizes a change. Employers should continue to submit evidence establishing eligibility in each filing rather than rely on a prior approval alone. DHS is inviting public comments for 30 days after publication; the official Federal Register notice will confirm the deadline. Murthy Law Firm is reviewing the proposal and will provide further analysis as developments warrant.

 

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Answer

An individual who is eligible for H1B portability generally may begin working for the new employer once USCIS receives and accepts for processing a properly filed, nonfrivolous petition. Portability is not available in every situation, however, and beginning employment before approval carries risk if the petition is later denied. The filing and the individual’s status history should be reviewed before employment begins. (Oct.13.2026)

Sheela Murthy and other senior attorneys provide guidance that clarifies the law. For information on our FREE online services, click here. Access more FAQs here.

 

 

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The post My H1B change-of-employer petition has been filed. Can I begin working for the new employer before the petition is approved? appeared first on Murthy Law Firm | U.S Immigration Law.

Vice President Vance says nine major universities, including Harvard, Yale, and Stanford, are under investigation over potential misuse of the J-1 exchange visitor program. The Labor Department’s inspector general says subpoenas have been served. The allegations remain under investigation; no finding of fraud has been announced.

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At an Oct. 8 news conference, VP Vance and Labor Secretary Sonderling said DOL would stop accepting new and processing pending PERM applications involving Microsoft, Adobe and six other firms. We await written agency guidance.

The post PERM Suspensions: White House News Conference appeared first on Murthy Law Firm | U.S Immigration Law.

The employer’s legal requirements for a layoff of an H1B worker and trends in Requests for Evidence are discussed by Murthy Law Firm attorneys in the October 2026 podcast.

The MP3 is available here and soon can be found in the archive of our podcasts and teleconferences on iTunes. Find more topics under the MurthyAudio tab on our homepage.

 

 

         

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The U.S. Department of Homeland Security (DHS) released a proposed rule on October 7, 2026, that would require Student and Exchange Visitor Program-certified schools to pay $70,000 before first recommending an F-1 student for optional practical training (OPT), and $30,000 before a subsequent OPT recommendation after the initial fee has been paid. The proposal covers pre-completion and post-completion OPT, including STEM OPT extensions; the fee would be paid by the school, not assessed directly to the student or a particular employer. The proposal is scheduled for publication in the Federal Register on October 8, 2026.

These fees are not in effect. If DHS finalizes the rule as proposed, it would take effect 60 days after publication of a final rule, and the new fee would not apply to an OPT recommendation issued before that effective date. DHS is accepting comments on the proposed rule through November 9, 2026. Students, schools, and employers should continue following current OPT requirements while monitoring this proposal. Murthy Law Firm is reviewing the potential impact and will provide further analysis on MurthyDotCom.

 

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Some applicants who have provided biometrics are seeing an unsettling update in their USCIS online case history: “Case Required USCIS To Send A Notice.” The accompanying message may say, “On [date], we issued a notice for your Form [form type], Receipt Number [number].” In cases brought to the Murthy Law Firm’s attention, the mailing that follows has been a notice titled “FBI Privacy Requirements for Biometrics Collection by USCIS.” The online message alone does not identify what was mailed, so applicants should read the actual notice before drawing conclusions about their case.

What Does the Notice Say?

Notices reviewed by the Murthy Law Form explain how USCIS collects and uses fingerprints and photographs for Federal Bureau of Investigation (FBI) criminal history checks. It describes USCIS’s transition since 2017 from point-in-time checks toward a process it calls Continuous Immigration Vetting. It also explains the applicant’s privacy rights, including the right to seek a copy of an FBI identity record and to challenge information believed to be inaccurate or incomplete. Most importantly for recipients, the letter expressly says: “You do not need to take any further action at this time. You will receive a separate notice if USCIS needs any additional information.”

The FBI explains that individuals whose fingerprints are checked for noncriminal justice purposes, including immigration matters, must receive written information about their privacy rights and how to seek correction of an FBI criminal history record. USCIS also explains that biometrics can be used to confirm identity and conduct required background and security checks. Those seeking more detail may consult the FBI’s Non-Criminal Justice Applicant’s Privacy Rights and USCIS’s Preparing for Your Biometric Services Appointment.

Does the Case Status Mean There Is a Problem?

Not necessarily. For applicants who receive this particular privacy notice, the “Case Required USCIS To Send A Notice” update reflects that USCIS issued a mailing. The privacy notice itself is not a request for evidence, a new biometrics appointment, an approval, or a denial. Nor does receipt of the notice, by itself, establish that background checks have been completed or indicate when USCIS will decide the underlying application or petition. The same general online wording may accompany other types of notices, so applicants should not assume every such update concerns the FBI privacy letter.

What Should Applicants Do?

Open and retain the mailed notice, compare its form and receipt information with the pending case, and send a copy to immigration counsel if represented. If it is the FBI privacy notice described above, there is no response to submit solely because of that letter. Continue to monitor the case for separate requests, appointments, or decisions, and follow any instructions and deadlines in those communications. If the mailed document is something other than the privacy notice, its own instructions control.

If the case status says USCIS mailed a notice but it does not arrive, check that USCIS has the correct address. USCIS advises contacting the agency when a case-status update says a notice other than a receipt notice was sent more than 14 days earlier and the applicant has not received it. See While My Case is Pending for further information.

Conclusion

A generic “notice sent” update can be alarming, but the September 2026 FBI biometrics privacy letter is informational and expressly requires no immediate action. The safest course is to confirm what was actually mailed, preserve it with the case records, and seek individualized advice if the notice is different or raises a case-specific concern.

 

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Answer

Brief trips to the United States generally do not interrupt the continuity of qualifying employment abroad. However, days spent physically in the United States normally do not count toward the required one year. The employer should document the employment period with the qualifying entity abroad and exclude the U.S. travel days when calculating eligibility. (06.Oct.2026)

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The post During my one year of employment abroad, I made several short business trips to the United States. Do the trips prevent me from qualifying for L-1 based on the L-1 one-year requirement? appeared first on Murthy Law Firm | U.S Immigration Law.

A Massachusetts court vacated the fee policies in June 2026. Echoing that ruling, a California court bars enforcement under the 2025 proclamation and its 2026 extension. Neither proclamation was struck down; appeal or rulemaking remains possible.

The post H1B $100K Fee: Courts Align appeared first on Murthy Law Firm | U.S Immigration Law.

International travel can present challenges for foreign nationals whose visa stamps have expired, even when they remain in valid nonimmigrant status in the United States. In limited circumstances, however, automatic visa revalidation (AVR) may allow certain travelers to seek readmission to the United States without first obtaining a new visa stamp. Because AVR is subject to specific eligibility requirements and exceptions, travelers should carefully assess whether they qualify before making travel plans.

Background

A visa stamp generally is needed to apply for admission to the United States in a nonimmigrant status after a trip abroad. The expiration of a visa stamp does not, by itself, end a person’s authorized stay in the United States. Rather, a person’s period of authorized stay is generally controlled by the Form I-94, Arrival/Departure Record, including an admission stamp or electronic I-94 record, or by a duration-of-status notation for certain students and exchange visitors.

Under the AVR regulation, an expired nonimmigrant visa may be considered automatically revalidated for an application for admission after certain brief trips to Canada or Mexico. The rule may also apply to certain F-1 students and J-1 exchange visitors who travel to certain adjacent islands other than Cuba. The governing regulations are available at 8 C.F.R. §214.1(b) and 22 C.F.R. §41.112(d).

Basic AVR Requirements

To potentially use AVR, a traveler generally must have been absent from the United States for no more than 30 days and must be returning after a qualifying trip to Canada or Mexico. F-1 students and J-1 exchange visitors may also qualify after travel to certain adjacent islands other than Cuba. The traveler must have a valid passport, remain otherwise admissible to the United States, and, in most cases, have an unexpired Form I-94 reflecting the appropriate classification and validity period. F-1 students and J-1 exchange visitors also must carry a properly endorsed Form I-20 or Form DS-2019, as applicable.

A person who changed or extended status in the United States may therefore be able to make a brief, qualifying trip and return using an unexpired I-94 issued with an approval notice, even if the visa stamp in the passport reflects an earlier classification or has expired. For example, an H1B worker with an expired H1B visa stamp but a valid H1B approval notice containing an unexpired I-94 may, subject to all other requirements and CBP inspection, be eligible to seek reentry after a short trip to Canada or Mexico.

AVR does not create a right to admission. U.S. Customs and Border Protection (CBP) decides whether to admit a traveler at the port of entry. Travelers should carry documentation supporting their continuing status and the purpose of travel, including the passport, I-94 record, approval notice where applicable, and current employer or school documentation.

Applying for a Visa Abroad Prevents Use of AVR

One particularly important limitation applies when a traveler applies for a new nonimmigrant visa while abroad. A person who applies for a new visa while outside the United States cannot use AVR to return unless the visa is issued. This is true even if the application remains pending or is denied.

Accordingly, an individual should not assume that a trip to Canada or Mexico for visa application purposes carries the same limited fallback protection as a brief visit that does not involve a visa application. If the consular officer refuses the application, administrative processing is required, or visa issuance is delayed for any reason, the individual may be unable to return to the United States as planned.

The U.S. Department of State’s current AVR guidance is available at Automatic Visa Revalidation.

Other Important Limitations

AVR is unavailable in a number of circumstances. A traveler generally cannot rely on AVR after a trip of more than 30 days. AVR also does not overcome a failure to maintain status, an inadmissibility concern, or another issue that may affect admission. Further, nationals of countries designated by the U.S. Department of State as State Sponsors of Terrorism are excluded from AVR. Because the relevant country designations can change, affected individuals should obtain current legal advice before traveling.

The rule is also not appropriate for every status situation. A traveler with a pending change-of-status application, a pending extension request, a newly approved petition without a corresponding I-94, or a complicated immigration history should evaluate travel plans carefully. Departing the United States may have consequences for a pending application, and AVR will not cure those consequences.

Practical Travel Considerations

Before relying on AVR, travelers should confirm that the trip is limited to a qualifying destination and will last 30 days or less. They should verify that their passports will remain valid, review their electronic I-94 records, and confirm that their status documentation is current. H1B and L-1 workers should also carry the relevant approval notices and evidence of ongoing qualifying employment.

Travelers should also avoid applying for a visa abroad if they intend to return through AVR. An individual who needs a new visa stamp should plan for the possibility of a refusal, additional administrative processing, or other delay and should not make return travel commitments that depend on AVR being available after the visa application is filed.

Conclusion

Automatic visa revalidation may permit limited reentry after a brief trip to Canada or Mexico, but it is subject to specific regulatory conditions and does not guarantee admission. The most significant practical point is straightforward: a traveler who applies for a new visa while abroad cannot rely on AVR to return. Individuals should review their circumstances with experienced immigration counsel before making travel plans that depend on this rule.

While some aspects of immigration have changed significantly in the years since MurthyDotCom began publishing articles in 1994, there is much that is still the same. From time to time, we at the Murthy Law Firm refer our clients to articles, like this one, which has been updated for our readers.

 

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Old EAD or I-485J marked “administratively closed”? It appears USCIS may be closing out older filings in its system which is prompting an unusually high number of administrative closure notices. Read the mailed notice and check the status of any pending application. 

The post USCIS Status Alerts: Read the Notice appeared first on Murthy Law Firm | U.S Immigration Law.

Answer

Generally, yes. Unlike the H1B category, the TN classification does not have special immigration provisions that ordinarily require the employer to pay specified filing and attorney fees. Any repayment arrangement or payroll deduction still must comply with applicable employment and wage laws. (29.Sep.2026)

Sheela Murthy and other senior attorneys provide guidance that clarifies the law. For information on our FREE online services, click here. Access more FAQs here.

 

 

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UPDATE TO: October 2026 Visa Bulletin

USCIS has confirmed that applicants may use the Dates for Filing charts for both family-sponsored and employment-based adjustment-of-status filings in October 2026. Check your category, country of chargeability, and priority date before filing Form I-485. https://www.uscis.gov/green-card/green-card-processes-and-procedures/visa-availability-priority-dates/adjustment-of-status-filing-charts-from-the-visa-bulletin

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The October 2026 Visa Bulletin marks the start of fiscal year 2027, with renewed visa availability for EB2 India and unreserved EB5 India, while several employment-based cutoff dates for countries other than China and India move backward. Unless otherwise specified, the cutoff dates below refer to the final action chart (Chart A). USCIS has not yet indicated whether adjustment-of-status applicants may use Chart A or the Dates for Filing chart (Chart B) for October 2026.

Visa Bulletin SummaryEmployment-Based, First Preference (EB1) Category

The EB1 cutoff date for India advances to 01.Feb.2023. China’s cutoff date remains 01.Jul.2023. EB1 remains current for all other countries of chargeability.

Employment-Based, Second Preference (EB2) Category

EB2 India is again available, with a final action cutoff date of 01.Nov.2013, following its unavailability in September. China’s cutoff date advances to 01.Oct.2021. The category retrogresses from current to 01.Jan.2025 for all other countries of chargeability, including Mexico and the Philippines.

Employment-Based, Third Preference (EB3) Category

For EB3 skilled workers and professionals, the cutoff date retrogresses to 15.May.2024 for all countries of chargeability except China, India, and the Philippines. China’s date advances to 08.Jan.2022, India’s remains at 01.Jan.2014, and the Philippines’ advances to 15.Aug.2023.

EB3 Other Workers

The EB3 other workers cutoff date retrogresses to 01.Jan.2022 for all countries except China, India, and the Philippines. China’s date advances to 01.Oct.2019, India’s remains at 01.Jan.2014, and the Philippines’ advances to 01.Jan.2022.

Employment-Based, Fourth Preference (EB4) Category

The EB4 cutoff date remains 15.Dec.2022 for all countries of chargeability. The supplied bulletin states that Congress extended the certain religious workers program through 11.Dec.2026; that category is assigned the same October final action date as the other EB4 categories. The extension should be independently confirmed before publication.

Employment-Based, Fifth Preference (EB5) Category

The EB5 unreserved category for India is again available, with a final action cutoff date of 01.Dec.2023. China’s unreserved cutoff date remains 01.Dec.2016. Unreserved EB5 is current for all other countries of chargeability. The rural, high-unemployment, and infrastructure set-aside categories remain current for all countries.

Family-Based, Second-Preference (FB2A and FB2B) Category

The FB2A final action cutoff date advances to 22.Sep.2026 for all countries except Mexico, which advances to 22.Mar.2026. In the FB2B category, the cutoff date remains 22.Aug.2019 for all countries except Mexico and the Philippines. Mexico advances to 15.May.2010, and the Philippines advances to 01.Oct.2013. The October Dates for Filing chart (Chart B) lists FB2A as current for all countries, but that does not mean immigrant visas are immediately available under the final action chart.

Adjustment-of-Status Filing Chart

The October bulletin’s Dates for Filing chart (Chart B) is distinct from its final action chart. USCIS decides which chart adjustment-of-status applicants may use each month. As of September 29, 2026, USCIS has not indicated which chart applicants may use for October 2026, so readers should check USCIS’s Adjustment of Status Filing Charts from the Visa Bulletin before filing Form I-485. A priority date generally must be earlier than the applicable listed cutoff date.

Conclusion

We will continue to monitor monthly visa bulletin movement and USCIS filing-chart announcements. Subscribe to the free MurthyBulletin for updates on U.S. immigration.

 

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The post October 2026 Visa Bulletin appeared first on Murthy Law Firm | U.S Immigration Law.

In a September 24, 2026, interview with commentator Benny Johnson, U.S. Department of Labor (DOL) Inspector General Anthony D’Esposito said he thinks the “foreign labor visa program is going to look very different 365 days from now than it does today.”

His remarks, documented in a transcript of the interview, were a prediction, not an announcement of a new H1B rule or the end of the H1B program. Although the discussion focused heavily on H1B, D’Esposito referred more broadly to foreign labor visas. Employers and foreign nationals should not treat the 365-day comment as a deadline for a specific change.

The interview comes amid concrete enforcement activity. In a September 18 statement, the DOL Office of Inspector General said investigators had issued dozens of subpoenas and executed search warrants in an investigation involving alleged foreign labor fraud, worker exploitation, and potential human trafficking. A separate September 18 executive order directs agencies to consider certain employer layoffs when reviewing H1B matters and directs DOL to begin reviewing previously submitted labor condition application data within 30 days. These are distinct developments; the interview does not itself establish new filing requirements. MurthyDotCom is monitoring the investigation and agency actions and will provide further analysis as details emerge.

 

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On September 23, 2026, the U.S. Department of State announced a new visa restriction policy under section 212(a)(3)(C) of the Immigration and Nationality Act targeting individuals who knowingly engage in, have engaged in, or facilitate birth tourism to the United States. According to the announcement, the policy may apply to owners, operators, and managers of commercial birth-tourism networks; visa “fixers” who coach applicants to commit fraud; foreign medical providers who knowingly facilitate such travel or the fraudulent use of Medicaid; other individuals who support or enable commercial birth tourism; and certain family members. The State Department announcement, Protecting the Sanctity of U.S. Citizenship: A New Visa Restriction Policy for Those Who Engage in or Facilitate Birth Tourism, does not provide detailed standards or procedures for implementing the policy.

The announcement is broader than the existing visitor-visa restrictions on travel primarily to give birth in the United States to obtain U.S. citizenship for a child because it also expressly targets persons who allegedly facilitate such travel. It remains unclear what evidence the State Department will require, how it will identify covered individuals and family members, whether the policy will affect existing visas, and what notice or review will be available. The Murthy Law Firm is monitoring this development and will provide additional information as implementation guidance becomes available.

 

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The U.S. Court of Appeals for the Eleventh Circuit recently issued an important decision addressing ineffective-assistance-of-counsel claims in immigration proceedings. In Pasqual-Andres v. U.S. Attorney General decided on August 4, 2026, the court held that a complaint filed with the Executive Office for Immigration Review (EOIR) Disciplinary Counsel may satisfy the third procedural requirement set forth in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988). The court rejected the Board of Immigration Appeals’ (BIA’s) conclusion that the noncitizen also had to file a complaint with the former attorney’s state bar.

The decision applies within the Eleventh Circuit, which includes Alabama, Florida, and Georgia. It is especially significant for individuals seeking to reopen immigration proceedings based on alleged ineffective assistance by prior counsel.

Background on Lozada Requirements

A noncitizen seeking reopening based on ineffective assistance of counsel generally must comply with the procedural framework established in Matter of Lozada. Among other requirements, the person must provide an affidavit describing the agreement with former counsel and the alleged deficient representation, notify former counsel of the allegations, and state whether a complaint has been filed with the appropriate disciplinary authorities. If no complaint has been filed, the person ordinarily must explain why, despite such a major failure by former counsel, the person cannot inform the disciplinary authorities so the attorney cannot act in that manner again.

The third requirement is often described as the “bar complaint” requirement. However, Lozada itself refers more broadly to a complaint filed with the “appropriate disciplinary authorities.” The BIA has used these procedural requirements to screen ineffective-assistance claims and to discourage claims brought merely to delay removal proceedings.

EOIR Complaint Was Sufficient

In Pasqual-Andres, the individual alleged that his former attorney had prepared and filed an inadequate appeal brief before the BIA without his involvement. The brief did not address certain adverse findings made by the immigration judge and was filed as though it were a pro se submission. When the individual later sought reopening based on ineffective assistance, he submitted evidence that he had filed a disciplinary complaint with EOIR concerning the attorney’s conduct.

The BIA denied reopening because the individual had not also filed a complaint with the attorney’s state bar. The BIA reasoned that EOIR discipline was limited to practice before EOIR and did not provide the same authority as a state bar to discipline an attorney in other settings.

The Eleventh Circuit disagreed. The court explained that neither Lozada nor published BIA or Eleventh Circuit precedent makes a state bar the sole disciplinary authority that can satisfy the third Lozada requirement. EOIR is an appropriate authority to receive a complaint concerning ethical or legal violations that occurred in immigration court proceedings.

The court noted that EOIR’s modern disciplinary framework permits significant sanctions, including suspension or disbarment from practice before the immigration courts and the BIA. EOIR also may coordinate with state and federal disciplinary authorities and is required to report non-private sanctions to the jurisdictions in which a practitioner is licensed. In light of these authorities, the court held that an EOIR complaint satisfies Lozada’s third requirement and that the BIA abused its discretion by requiring a separate state-bar complaint.

Substantial Compliance Also Is Enough in the Eleventh Circuit

The decision includes a second important holding. The Eleventh Circuit, for the first time, held that substantial compliance with Lozada’s procedural requirements is sufficient. The court joined the majority of circuits that do not require rigid, formulaic adherence where the purposes of the requirements have been served.

Even if an EOIR complaint were not deemed complete compliance with the third Lozada requirement, the court found that it would constitute substantial compliance. An EOIR complaint can deter meritless ineffective-assistance claims, put the attorney’s conduct before an appropriate disciplinary system, assist in identifying patterns of misconduct, and provide a mechanism for disciplinary review. These functions advance the central purposes underlying Lozada.

The court granted the petition for review and vacated the BIA’s order denying the motion to reopen. The court did not decide whether the underlying ineffective-assistance claim ultimately warranted reopening on the merits.

Practical Considerations

This decision is helpful authority for individuals in Alabama, Florida, and Georgia whose ineffective-assistance claims arise from representation before the immigration courts or the BIA. It confirms that an EOIR disciplinary complaint is not merely a substitute of lesser value for a state-bar complaint. Under Pasqual-Andres, it is an appropriate disciplinary complaint for purposes of Lozada’s third requirement.

Nevertheless, individuals and counsel should not assume that filing an EOIR complaint excuses all other Lozadaobligations. A motion to reopen based on ineffective assistance must still address the agreement with prior counsel, notice to prior counsel, timeliness, prejudice, and the particular procedural and factual circumstances of the case. A complaint to EOIR also may be advisable alongside a state-bar complaint in appropriate cases, particularly when the alleged misconduct may implicate professional obligations beyond immigration-court practice. The appropriate strategy will depend on the facts, the attorney’s licensing jurisdiction, and the relief sought.

Conclusion

Pasqual-Andres clarifies that, in the Eleventh Circuit, a noncitizen need not file a state-bar complaint specifically in order to meet Lozada’s third requirement when an EOIR disciplinary complaint has been filed. The ruling recognizes EOIR’s authority to investigate and discipline misconduct in immigration practice and provides a more practical path for individuals seeking reopening based on ineffective assistance of counsel. Anyone considering such a motion should obtain individualized legal advice promptly, as motions to reopen are subject to strict deadlines and case-specific requirements.

 

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Answer

Not necessarily. When checking a case on CEAC, the status may show only “Issued” or “Refused,” without distinguishing between a refusal that requires additional processing and a refusal that is based on another ground of ineligibility. Thus, a “Refused” status may reflect a refusal under INA §221(g), including administrative processing, or it may reflect another type of refusal. The consular officer’s instructions at the end of the interview and the written refusal notice provided to the applicant should indicate whether additional documents are needed or whether the case requires further administrative processing. (22.Sep.2026)

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The post I recently attended my H-1B visa interview at a U.S. consulate abroad. The consular officer mentioned that my social media might need to be reviewed, but did not clearly explain whether anything else was needed. My CEAC status now says “Refused,” even though I have received H-1B visas before. Does this mean my visa will not be issued? appeared first on Murthy Law Firm | U.S Immigration Law.