Immigration Law of Montana

Christopher J. Flann, Attorney

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New DS-260 Questions: The One Answer That Can Cost You Your Category

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Couple from behind on a mountain overlook at sunset beside an empty wooden frame

The DS-260 immigrant visa application now asks for much more than it used to. The revised version, approved in May 2026, asks every applicant for 15 years of foreign travel, with cities, dates and who paid; 15 years of employers for anyone over 14; every passport held in the past 15 years; all of your brothers and sisters; and your “spouse or civil/domestic partner,” current and former. For most people that means more homework. For an unmarried adult son or daughter waiting in the F1 or F2B category, or any applicant immigrating as an unmarried “child,” it means something more serious: the form now puts your relationship on the record, and if that relationship counts as a marriage under the law of the place where it was formed, you may no longer qualify for the visa you have been waiting for. Answer truthfully, and get advice before you answer, not after.

What changed on the DS-260 in 2026?

The State Department revised the DS-260 through the public Paperwork Reduction Act process. It published notices in the Federal Register in July and November 2025, and the White House Office of Management and Budget approved the revised form on May 19, 2026 (OMB No. 1405-0185). The Department’s supporting statement lists every change, and the screen-by-screen sample of the approved form is posted with the OMB record. As of October 2026, these are the changes that matter most to applicants:

  • Travel, 15 years. The form asks, “Have you travelled to any countries/regions, other than the United States, within the last fifteen years?” For each trip it wants the country, the cities, the date you arrived, the length of stay, and who paid (yourself, another person, your employer, a U.S. employer, or another company or organization). Before, only certain applicants were asked, it covered five years, and it asked only for the countries.
  • Employers, 15 years, for everyone over 14. Every applicant over 14 must list all employers from the last fifteen years and every school attended from high school on. Before, only certain groups had to list employers, and only for ten years.
  • Passports, 15 years. A new question asks whether you have owned any other passports within the past fifteen years, with the issuing country and the number (there is a “do not know” box for the number).
  • Siblings. A new page asks for every brother and sister, including half, step and adopted siblings, with name, date of birth and nationality.
  • “Spouse or civil/domestic partner.” The form’s headings and fields now say “spouse or civil/domestic partner” where they used to say “spouse,” and every applicant is asked, “Do you have any previous spouses or civil/domestic partners?”
  • Social media. The list of platforms was expanded, and you still list the accounts you used in the last five years.

The form also asks, as it did before, for every nationality you hold now or have ever held. Its help text says to include nationalities you formally gave up, and if the country no longer exists, to select the country that now governs that place. With the new passport question, that is worth getting right.

Two things did not change, and both matter. There is still no general box to explain your answers: the State Department considered adding one and declined, saying that applicants who want to explain a response can do so at the in-person interview (90 FR 52129, 52130). And once you submit the DS-260, you cannot edit it yourself; the National Visa Center or the consulate has to reopen it. In the same November 2025 notice, the Department acknowledged that problem and said work to fix it was underway.

Is a civil or domestic partner the same as a spouse for an immigrant visa?

Not automatically. It depends on the law of the place where the relationship was formed. The State Department’s manual for consular officers, the Foreign Affairs Manual, treats a civil union or domestic partnership as a marriage for visa purposes only if the place where it was created treats it as equal in all respects to a marriage (9 FAM 102.8-1(G)). The same test applies to common-law marriage and cohabitation (9 FAM 102.8-1(F)). Put in plain terms, the relationship counts as a marriage if, under local law, it can end only by divorce or death and carries the same rights a married couple has: possible alimony, inheritance without a will, and custody of children.

So the answer turns on facts most people have never looked up. A registered partnership in one country may carry only property and tax rights and be ended by a simple filing. That is not a marriage for visa purposes. A union in another country may be legally identical to marriage. That is a marriage, whatever it is called. A religious or traditional ceremony can also count, even before it is registered: the Board of Immigration Appeals held in Matter of Coletti, 11 I&N Dec. 551 (BIA 1965) that a man who had a church wedding, lived with his wife and had a child was not “unmarried” when he immigrated as an unmarried son, even though the marriage had not yet been civilly recorded. That case involved a deliberate delay in recording the marriage, but the lesson holds: the label on your paperwork does not decide the question. The law of the place does, and the Board will look past technicalities of local law to how the couple actually lived.

The question does not stop at the border, either. Montana is one of the states that preserves common-law marriage (§ 40-1-403, MCA). A couple who lived together in Montana and held themselves out as married may be married under Montana law without ever having had a wedding.

Who is at risk from the partner question?

Anyone whose visa category requires them to be unmarried. Federal law defines “unmarried” as not married at the time, “whether or not previously married” (INA § 101(a)(39)), so a divorce in your past is not the problem. A relationship that is a marriage today is. The categories that require you to be unmarried are:

  • F1: unmarried sons and daughters (21 or older) of U.S. citizens.
  • F2B: unmarried sons and daughters (21 or older) of permanent residents.
  • Children of U.S. citizens immigrating as immediate relatives, and children of permanent residents in F2A. Immigration law defines a “child” as unmarried and under 21.
  • Derivative children in every category: family, employment and diversity visa cases. A son or daughter who is married cannot immigrate as a “child” with a parent.

These beneficiaries have often waited a long time. In the October 2026 Visa Bulletin, the F2B final action dates reach priority dates from August 2019 for most countries and May 2010 for Mexico. Losing the category at the last step is the worst outcome in family immigration, and the new partner question is where it can surface.

What happens to my case if the consulate decides I am married?

It depends on who filed the petition and what your category is. The regulations set the result, and the officer does not have discretion to waive it:

  • F1 (parent is a U.S. citizen): the petition converts to F3, married sons and daughters of U.S. citizens, and you keep your priority date (8 CFR § 204.2(i)(1)(i)). The F3 line is longer. In the October 2026 bulletin its final action dates reach October 2014 for most countries and July 2001 for Mexico.
  • F2B or F2A (parent is a permanent resident): the petition is automatically revoked (8 CFR § 205.1(a)(3)(i)(I)). There is no category for the married son or daughter of a permanent resident. A new petition is possible only after your parent becomes a citizen, and it starts over with a new priority date.
  • Child of a U.S. citizen (immediate relative): the petition converts to F3, and the original filing date becomes your priority date (8 CFR § 204.2(i)(1)(ii)).
  • Derivative child: a married son or daughter is not a “child” and cannot receive a derivative visa with the parent.

Our article on the F-2B election when a parent naturalizes explains why a parent’s citizenship works as insurance against a wedding, and what an F-2B beneficiary gives up by opting out of the conversion.

How should I answer the partner question if I am not married?

Truthfully, and only after you know how the law treats your relationship. Our judgment is that this is the step most applicants will get wrong, because the form itself is uneven. In the sample of the approved form, the “current marital status” menu still offers only Married, Single, Widowed, Divorced and Legally Separated. The page about a current “spouse or civil/domestic partner” appears only if you choose Married or Legally Separated. But the page about “previous spouses or civil/domestic partners” appears for everyone. A person in a current registered partnership finds no slot for it, and a person whose partnership ended is asked about it directly.

We would not let that unevenness decide the answer. Work in this order:

  • First, decide what the relationship is. Find out whether the law of the place where it was formed treats it as a marriage under the 9 FAM test above. For a foreign partnership, that may mean reading the country’s civil code or getting a short opinion from a lawyer there.
  • If it is a marriage, you are married for immigration purposes. Do not answer “single.” Stop and get advice about your category before you submit anything.
  • If it is not a marriage, you are unmarried, and “single” (or “divorced,” if you were once married) is the accurate marital status. Answer each partner question exactly as it is asked, and list a past partnership where the form asks for one.
  • Bring the proof to the interview. Because the form has no explanation box, the interview is where you explain. Bring the registration certificate or the termination record and the legal basis for your answer. Expect the officer to ask, and answer directly.

The stakes run both ways. Knowingly calling a legal marriage “single” to keep a category is a willful misrepresentation of a material fact, which makes a person permanently inadmissible (INA § 212(a)(6)(C)(i)). A waiver exists, but it is discretionary and requires proving extreme hardship to a U.S. citizen or permanent resident spouse or parent. Even without any finding of fraud, a visa issued in the wrong category is no protection: in Coletti, the man who entered as an “unmarried son” was ordered deported because he had never qualified for the visa. But calling a partnership a marriage when the law does not treat it as one can cost an applicant a category they are entitled to keep. The right answer is the accurate one, and you have to do the legal work to know which one that is.

Can I fix the problem by ending the relationship before the interview?

Sometimes, and only in some categories. In F1, if a marriage converted your petition to F3, a legal divorce converts it back to F1, again keeping the original priority date (8 CFR § 204.2(i)(1)(iii)). In F2B, the marriage revokes the petition, and the regulation contains no provision bringing a revoked petition back to life if the marriage later ends. A divorce timed to an interview will also draw close questions about whether the relationship really ended. Get advice before you take any step that changes your marital status. Remember too that the rule keeps running after the interview: a marriage after the visa is issued, but before you travel to the United States, still costs you the category. An F2B petition is revoked, and an F1 petition converts to F3, so the visa in your passport can no longer be used.

How do I gather 15 years of travel history?

Start early and build the list from records, not memory. The travel question covers trips to every country other than the United States. Your U.S. trips go on a separate page of the form. Sources that work:

  • Old passports. Entry and exit stamps are the backbone of the list. Find the expired passports before you start. You will also need their numbers for the new passport question.
  • Airline accounts and email. Frequent-flyer histories and booking confirmations give exact dates and cities.
  • Employer records. Travel and expense reports show business trips and answer the “who paid” field.
  • Bank and card statements for trips you paid for yourself.
  • Your U.S. entry record. For trips to the United States, CBP’s I-94 website shows your recent entries and exits, for the separate U.S. travel page.

Check the list against what you have told the U.S. government before: visitor visa (DS-160) applications, ESTA applications, the I-130 petition, and any earlier immigration filing. A trip on one form and not on another invites questions at the interview, and an unexplained gap can lead to a 221(g) refusal while the consulate sorts it out. If you cannot pin down a date, use your best documented estimate and keep the records that support it. Do not invent precision you do not have.

What else on the new form takes preparation?

Three more items catch people off guard. Siblings: gather full names, dates of birth and nationalities for every brother and sister, including half, step and adopted siblings. The form allows “do not know” for a date of birth, so use it honestly rather than guess. Employers: fifteen years of jobs, with addresses, supervisors and dates, now applies to every applicant over 14, including many people who were never asked before. Nationalities and passports: list every nationality you have held, even one you renounced, and every passport from the last fifteen years. If a passport number is lost, the form lets you say so.

Some practical habits from our own consular practice. Complete the personal, passport and nationality pages first, because they are short and the rest of the form builds on them. Leave the travel and employment pages for last, after your worksheet is finished. Draft every answer in a document before you type it in. Save constantly: the State Department’s DS-260 FAQs warn that the system logs you off after about 20 minutes of inactivity and anything not saved is lost. Before you press submit, print or save the full review page and read it as the officer will.

What should I do before I start the DS-260?

If you are single and have never had a partner, the new form is mostly a records project. Start the travel and employment worksheet now. If you are in an unmarried category and you have, or have had, a civil union, a registered or domestic partnership, a common-law relationship, or a religious or traditional marriage that was never registered, talk to a lawyer before you answer the marital-status and partner questions. That is the one place on the new DS-260 where a quick answer can cost you a category you have waited years for. Most other gaps on the form can be fixed with records and patience, as long as every answer is true.

The DS-260 is one step in a longer process. Our consular processing guide walks through the full path from the National Visa Center to the interview, including the public charge changes at consulates in fall 2026. To see where your case stands, see how to check your visa case status. If you want us to review your answers before you submit, contact us.

No Stamp in Your Passport? How to Prove You Were Admitted

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A grass-covered stone root cellar at dusk, its arched wooden door shut, a thin line of light glowing beneath it.

You landed, handed over your passport, answered a few questions, and got it back with no stamp. No ink, no date, no class of admission. If you have traveled to the United States before, that feels like something went wrong. It did not. In an October 1, 2026 bulletin, U.S. Customs and Border Protection (CBP) announced that it will stop routinely stamping passports at primary inspection, and the proof that you were admitted now lives in one place: your electronic I-94 record and your CBP travel history. Retrieve both within a few days of arriving, check them, and save a copy.

This is a short page on what changed and what to do about it. Our full guide to the I-94 admission record explains what the I-94 controls and why it, not the visa, sets how long you may stay.

Did CBP really stop stamping passports?

Yes. CBP has announced the end of routine stamping. In a Carrier Liaison Program bulletin dated October 1, 2026 (Publishing No. 5680-1026), CBP told airlines that it “will cease the routine use of admission stamps during primary processing.” The bulletin is addressed to carriers, not travelers. As of October 6, 2026, CBP has not posted it on its own website; the copy in circulation is the one published by the American Immigration Lawyers Association (AILA Doc. No. 26100108). The bulletin gives no separate start date, so plan on any entry from now on being stampless.

Stamps have not disappeared entirely. Put in plain terms, the bulletin says an officer may still stamp a passport in secondary inspection, and, in limited circumstances, in primary inspection: when admitting someone on an immigrant visa, and when a traveler specifically asks. Everyone else should expect a clean page.

If there is no stamp, was I still admitted?

Yes. Admission is the officer’s decision at the port of entry, not the ink. The stamp was only one piece of evidence of that decision, and the regulations have long treated the I-94 as the record: an admitted nonimmigrant is issued a Form I-94 “as evidence of the terms of admission” (8 CFR § 235.1(h)(1)). What has changed is that for most travelers the electronic record is now the only evidence. Nothing in your hand shows that the entry happened, on what date, or in what status.

How do I get proof of my entry now?

Use the CBP I-94 website or CBP’s free CBP Link mobile app. According to the bulletin, these give travelers evidence of their admission, their authorized length of stay, and five years of arrival data (as of October 2026, CBP’s own I-94 help page says the travel-history search covers the past 10 years). Pull two things:

  • Your most recent I-94. Check your name, date of birth and passport number, your class of admission (B-2, H-1B, TN, and so on), and the “admit until” date. That date is the outer limit of your stay.
  • Your travel history. Confirm that this trip appears, with the right arrival date.

Save both as a PDF or a screenshot and keep them with a copy of your passport. Do it within a few days, not a few years. For air travelers, the record is built partly from passenger data the airline sends CBP, and CBP’s own bulletin warns airlines why that matters: “Accurate and timely APIS transmissions are critical in this process as this data directly feeds into the I-94 website portal.” APIS is the Advance Passenger Information System. A typo in the airline’s data is a typo in your record, and no one but you is checking.

Why does a missing stamp matter later?

Because proof of lawful admission is the fact that later applications turn on. The Social Security office, the driver’s license counter, an extension or change of status on Form I-539, and above all a green card application all ask for it. Adjustment of status inside the United States is generally open only to a person who was “inspected and admitted or paroled” (INA § 245(a)). Until now, a stamp in an old passport could settle that question years after the trip. Going forward there will be no stamp to find.

When the record is missing years later, it can still be recovered. Our I-94 guide describes how we use a Freedom of Information Act request to CBP to rebuild a client’s entry. It works, but it is slow. An error you catch this week costs a short correction request to CBP. The same error found at a green card interview can cost the case months.

What if my I-94 is missing or wrong?

Fix it while the entry is recent. The bulletin tells travelers who cannot retrieve their I-94 to contact their local CBP port of entry. CBP also runs more than 70 deferred inspection sites, which handle requests from travelers who believe the documents and endorsements issued at the port need review and correction. In our experience, it helps to bring your passport, your visa or approval notice, and your boarding pass or itinerary. If the date or classification is wrong and the date shown is close, talk to a lawyer before it passes; staying past the I-94 date can start unlawful presence even when the date was CBP’s mistake, unless it is corrected first.

I am Canadian. What will I see?

It depends on why you are entering.

  • Visiting. Canadian citizens admitted as visitors for business or pleasure are generally not issued an I-94 at all (8 CFR § 235.1(h)(1)(i), read with 8 CFR § 212.1(a)). Canadian visitors were often not stamped even before this change; your travel history is the record of your entries. Check that each crossing appears. It is also what an officer looks at when counting your days; our guide for Canadians and the I-94 guide’s six-month section explain why that count matters.
  • Working. A Canadian admitted in TN status at the port, or on an approval notice for H-1B, L-1 or H-2A, does receive an I-94. Check that the classification is right and that the admit-until date matches the petition. A wrong class or a short date is the error to look for.
  • E-2 investors. Canadians need an E-2 visa from a U.S. consulate before entering in that status; see our E-2 guide for Canadians. The same check applies to the I-94 issued on entry.

Should I ask the officer for a stamp?

You may ask. The bulletin allows a stamp in primary inspection “upon a traveler’s specific request,” but only when appropriate, so it is not guaranteed. A stamp is a useful backup to have in hand. It does not replace the I-94: even with a stamp, the I-94 is the record USCIS, the Social Security office and the licensing agency will look for.

If you are entering on an immigrant visa, the officer will likely stamp it, though the bulletin does not promise it. Once CBP endorses the immigrant visa at admission, it serves as temporary evidence of permanent residence for one year. If it is not stamped, ask before you leave inspection, and if the green card has not arrived well within that year, follow up with USCIS.

The habit that replaces the stamp

Within a few days of every entry, pull your I-94 and your travel history, check them, save a copy, and put the admit-until date on your calendar. It takes five minutes, and it turns a record you cannot see into one you have checked. If the record is missing or wrong, or the date is close and your plans have changed, contact us. These problems are easy to fix early and hard to fix late.

Layoffs and PERM: Can You Still Sponsor a Green Card?

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You cut staff this year. Now you want to sponsor a key employee for a green card, and the news says the federal government just shut Microsoft out of the green card labor certification program while pointing at its layoffs. The short answer is yes: a layoff does not stop an employer from filing a PERM labor certification. What it does is add a duty. If the layoff touched the same or a related occupation, in the same area, in the six months before you file, you must tell the laid-off workers about the job, consider them for it, and document both. Done right, that is a manageable step. Done carelessly, it is now the kind of file that investigators read.

This page explains what the government announced, what the layoff rule actually requires, how to tell whether your layoff counts, and what a worker should do if their employer is one of the companies named. For the full PERM process from wage determination to filing, see our complete guide to PERM labor certification for employers.

What did the government announce about Microsoft and PERM?

At a White House news conference on October 8, 2026, Vice President JD Vance and Secretary of Labor Keith Sonderling said the Department of Labor would stop handling permanent labor certification (PERM) applications for eight companies: Microsoft, Adobe, Cognizant, Infosys, Tata Consultancy Services, Wipro, HCL Technologies and Capgemini. According to CNBC, Secretary Sonderling said the Department would not accept or process new applications for the six IT services firms, and that Microsoft and Adobe were suspended “due to multiple active federal investigations.” Practitioner summaries, such as this one from WR Immigration, describe pending applications as halted too. These are allegations. As of October 8, 2026, none of the eight companies had been criminally charged in connection with the announcement, and no finding of wrongdoing had been made.

The government’s stated theory was not the layoff rule. It was sham recruitment. According to the Associated Press account of the news conference, Vance said: “They’ll put an advertisement in a small-town newspaper.” He described employers who report that nobody answered the ad and then use that lack of response to fill the job with a foreign worker. He also cited Microsoft’s 6,000 layoffs in 2025 against 6,300 H-1B visas and almost 3,000 green cards. Microsoft responded that “the vast majority of Microsoft employees in the United States are Americans,” and said 80% of its H-1B filings last fiscal year were extensions or changes of status for people already on its payroll.

Two facts matter for anyone reading this as an employer. First, as of October 8, 2026, the Department of Labor had published no written notice, press release or regulation citation for the action; its newsroom and the Office of Foreign Labor Certification announcements page were silent. Second, it is not the first time, and earlier rounds did come in writing. On May 12, 2026, the Department announced that it had suspended processing of all PERM applications filed by or for Cloudera for 180 days. On September 8, 2026, the Department’s Inspector General announced that Cognizant’s PERM filings were suspended, and a September 2026 law-firm summary reported that investigators had issued dozens of subpoenas. Labor certification files are being opened and read.

Does a layoff stop an employer from filing PERM?

No. There is no “no layoffs” rule in PERM. The regulation that governs layoffs, 20 CFR § 656.17(k)(1), assumes some employers that file will have had layoffs and tells them what to do:

“If there has been a layoff by the employer applicant in the area of intended employment within 6 months of filing an application involving the occupation for which certification is sought or in a related occupation, the employer must document it has notified and considered all potentially qualified laid off (employer applicant) U.S. workers of the job opportunity involved in the application and the results of the notification and consideration.”

The application itself asks the question. Form ETA-9089, Section G, question 12, reads: “Has the employer had a layoff in the occupation involved in this application or in a related occupation within the 6 months immediately preceding the filing of this application in the area of intended employment?” A “yes” sends the employer to Appendix C, where the form instructions ask for the job titles, locations and number of employees laid off, and how the laid-off employees were notified of the job (form edition expiring 02/28/2029, read October 8, 2026). The employer signs the form under penalty of perjury.

Which layoffs count for PERM?

A layoff triggers the notify-and-consider duty only if it passes four filters. Miss any one and the rule does not apply to that filing.

  • It was a layoff. The regulation defines a layoff as “any involuntary separation of one or more employees without cause or prejudice.” One person counts. A firing for cause, a resignation and a retirement do not.
  • Same or related occupation. The layoff must be in the occupation you are sponsoring for, or in a “related occupation,” which § 656.17(k)(2) defines as “any occupation that requires workers to perform a majority of the essential duties involved in the occupation for which certification is sought.” The test is the duties, not the job title.
  • Same area. The layoff must have been in the area of intended employment, meaning the commuting area around the worksite in the application. A layoff at a plant in another state does not reach a filing for a job in Billings.
  • Within six months. The look-back is the six months before the PERM application is filed, not before recruitment started. A layoff eight months before filing is outside the window.

Decision tree: was it an involuntary separation without cause, in the same or a related occupation, in the area of intended employment, within six months before filing; if yes to all four, notify, consider and document.

The “majority of the essential duties” test is a cousin of the rule DOL uses to decide whether a sponsored worker’s earlier job with the same employer counts as qualifying experience, which turns on whether the two jobs share the same duties more than half the time. Our page on qualifying for PERM with education and experience walks through that comparison, and the same habit of listing duties and estimating time on each is the right way to test a layoff.

Senior engineers out, junior engineers in: does that trigger the layoff rule?

Yes, almost always. Suppose a company lays off senior software engineers in March and files a PERM for a junior software engineer in the same city in July. A senior engineer performs most of a junior engineer’s essential duties: writing, testing and maintaining code. The occupations are the same or related, the area is the same, and the filing is inside six months. The employer must notify the laid-off seniors of the junior opening and consider them. The application can be certified only if they were told, genuinely considered, and found not qualified or not interested, and the file shows it. Our judgment: an employer will struggle to explain why a person who did the senior job cannot do the junior one.

Now suppose the same company lays off software engineers and, in the same months, sponsors electricians to build out a data center. A software engineer does not perform a majority of an electrician’s essential duties. The layoff does not trigger the rule for that filing. The headline numbers (“6,000 laid off, 6,300 visas”) cannot tell you which situation you are in. Only the duties, the place and the dates can.

Situation Notify and consider? Why
Senior software engineers laid off in March; PERM for a junior software engineer, same city, filed in July Yes Related occupation (majority of duties shared), same area, inside six months
Software engineers laid off; PERM for electricians at a new data center No Not the same or a related occupation
Engineers laid off at the company’s Seattle office; PERM for an engineer in Billings No Different area of intended employment
Hospital eliminates two staff nurse positions; PERM for a physician the next month No A staff nurse does not perform a majority of a physician’s essential duties
Ranch lets one mechanic go in a downturn; PERM for a farm equipment mechanic four months later, same county Yes One involuntary separation is a layoff; same occupation, area and window
Employee fired for repeated safety violations; PERM for the same job No A separation for cause is not a layoff
Layoff in the same occupation eight months before filing No Outside the six-month window

Close cases are common, especially where duties blend, as they do in agricultural jobs that mix field work, mechanics and hauling. Our page on combined duties in farm worker green cards explains how the Department of Labor reads mixed positions. When the answer is close, treat the layoff as covered. Notifying a laid-off worker who turns out not to qualify costs little. Skipping a worker who did qualify can cost the case.

What does “notify and consider” require, and what must the file show?

It requires a specific notice of the specific job, sent to each potentially qualified laid-off worker, followed by a real evaluation of anyone who responds. The Board of Alien Labor Certification Appeals, which hears PERM appeals, has rejected the shortcut of a general separation notice or an invitation to watch the company’s job site. In American Express Travel Related Services, 2015-PER-00443 (BALCA Mar. 31, 2017), it held that “Section 656.17(k)(1) is not ambiguous and plainly requires an employer to document that it notified laid-off workers of the specific job opportunity involved in the PERM application.” The Board repeated that holding in Oracle America, Inc., 2015-PER-00308 (BALCA May 4, 2017). These are three-judge panel decisions, which do not bind future panels the way the Board’s en banc decisions do, but they show how the regulation is read.

“Consider” has teeth too. An employer may reject a U.S. worker only for lawful, job-related reasons (20 CFR § 656.10(c)(9)). And a worker who lacks a skill but could learn it in a reasonable period of on-the-job training counts as qualified (20 CFR § 656.17(g)(2)). A laid-off employee who did the work at your company last spring is the hardest applicant in the world to reject on that standard.

In practice, a file that will hold up contains:

  • A list of everyone laid off in the six months before filing, with job title, worksite and separation date, and a short note on why each was or was not in a related occupation.
  • A dated notice to each potentially qualified worker, sent to the address or email they actually use, describing this job: title, duties, minimum requirements, location and pay, and how to apply.
  • Proof of delivery, and a record of who answered.
  • For each person who answered, the evaluation: who reviewed the application, against which stated requirement, and the lawful reason if the worker was not hired. If training would close the gap, that is not a reason.
  • The Appendix C explanation, consistent with all of the above.

Keep it. The employer must retain the application and all supporting documentation for five years from filing (20 CFR § 656.10(f)).

Why does the PERM paperwork matter more now?

Every PERM filing rests on attestations the employer signs under penalty of perjury, including that “the job opportunity has been and is clearly open to any U.S. worker” and that U.S. workers who applied “were rejected for lawful job-related reasons” (20 CFR § 656.10(c)(8) and (9)). Until recently, most employers met the Department of Labor’s scrutiny only through a random audit or a request for information. Since July 2026, when the Department’s Inspector General announced an investigation of fraud in the H-1B and PERM programs, the same files are being read by investigators looking for recruitment that was never meant to find anyone. Our judgment: an employer with a recent layoff should assume its laid-off-worker notices will be among the first documents an investigator asks for.

The “small-town newspaper” line deserves a word, because it describes something the law requires. For a professional job, the regulation requires two Sunday print advertisements “in the newspaper of general circulation in the area of intended employment most appropriate to the occupation and the workers likely to apply for the job opportunity and most likely to bring responses from able, willing, qualified, and available U.S. workers” (20 CFR § 656.17(e)(1)(i)(B)). Where a rural area has no Sunday paper, the employer may use the edition with the widest circulation. For a job in Sidney or Glasgow, Montana, the right paper may be the local one or a regional Sunday paper that circulates there. Either way, a small-town paper can be exactly the one the rule requires. Running that ad is not a loophole. Choosing the paper least likely to be read, writing an ad nobody could recognize as the job, or ignoring the people who answer: those are the abuses. The rule’s own words point to the cure, which is the same as for layoffs. Recruit as if you want to find someone, and keep the proof.

What is a DOL “suspension,” and how is it different from debarment?

A suspension pauses processing. A debarment bars filing. As of October 8, 2026, the Department of Labor had not said which regulation it was using, but practitioners point to 20 CFR § 656.31(b). Put in plain terms, it lets the Department, when an employer is under investigation for possible fraud or willful misrepresentation in the PERM program, suspend processing of that employer’s labor certification applications until the investigation or court case ends. A suspension may last up to 180 days at first and can be extended while the investigation continues. Unless the investigating agency asks otherwise in writing, the Department must notify the employer in writing.

Two points follow. The regulation speaks of suspending the processing of applications; it does not separately address refusing to accept new ones, which the October 8 announcement also described. The written notices, when they appear, should say how the Department is handling that. And a suspension is not a finding of fraud. If criminal charges are withdrawn or end without a finding of fraud, the Certifying Officer decides each pending application on its merits (§ 656.31(d)), and once 180 days pass without charges the Department may resume processing (§ 656.31(b)(2)). If fraud is found, pending applications can be denied (§ 656.31(e)).

Debarment is the penalty. Under § 656.31(f), the Office of Foreign Labor Certification may bar an employer, attorney or agent from the PERM program for up to three years for listed misconduct, including a pattern of failing to comply with the terms of the labor certification form. A Notice of Debarment must be written, explain the reasons, and identify the employer’s appeal rights. The Department publishes a PERM debarment list. Nothing announced on October 8 was described as a debarment.

My employer is on the list. What happens to my green card case?

It depends on how far your case had gone before the suspension. As of October 8, 2026:

  • PERM not yet filed. According to the October 8 announcement, the Department will not accept new applications from the named companies while the suspension lasts. If you are in H-1B status and nearing the six-year limit, that delay matters, because extensions beyond six years generally depend on a labor certification filed at least 365 days earlier.
  • PERM pending. It is paused, not denied. If the investigation ends without a fraud finding, it will be decided on its merits; if fraud is found, it can be denied. The filing date is preserved for now, but a priority date becomes yours only through an approved I-140 petition, and that cannot happen until the labor certification is approved.
  • PERM certified, I-140 not yet filed or pending. The suspension, as described, concerns labor certification processing. It does not by its terms cancel a certification already issued. Watch the clock: a certification expires if the I-140 is not filed within 180 days of certification (20 CFR § 656.30(b)), and nothing in the announcement stops it. A certification can also be revoked by the Department after written notice and a chance to rebut (20 CFR § 656.32), or invalidated by USCIS or a consular officer for fraud or willful misrepresentation (§ 656.30(d)).
  • I-140 approved. An approved I-140 generally lets you keep its priority date for a later employment-based petition, including with a new employer. You lose it only if USCIS revokes the approval for fraud or willful misrepresentation, for a material error, or because the labor certification was revoked or invalidated (8 CFR § 204.5(e)).

If you are in H-1B status, your current status is not affected by a PERM suspension alone, but extensions beyond six years and changes of employer depend on facts specific to you. If your own record is strong enough, a self-petition that does not need PERM at all may be worth testing: see our guide to the EB-2 National Interest Waiver. Do not assume your case is lost, and do not assume it is safe. Get the date of each filing and approval in your case, and have them reviewed.

Is the H-1B layoff rule the same as the PERM rule?

No. They are different rules in different programs. The 6,300 figure in the news conference referred to H-1B visas, not green cards. In the H-1B program, the layoff rule is a promise in the Labor Condition Application not to displace U.S. workers, and it applies only to employers that are “H-1B-dependent” or have been found to be willful violators, and even then not to applications filed solely for “exempt” H-1B workers (20 CFR § 655.736; § 655.738). For an employer with 51 or more full-time-equivalent employees in the United States, dependence means its H-1B workers number at least 15% of those full-time-equivalent employees. For those employers, the protected period runs “within the period beginning 90 days before and ending 90 days after the filing date of an H-1B petition.” Our H-1B guide covers the Labor Condition Application more generally.

The PERM rule is different in every respect that matters. It applies to every employer, dependent or not. It looks back six months from filing. It reaches related occupations, not only “essentially equivalent” jobs. And it requires notice and consideration, not a bar on hiring.

What should an employer with recent layoffs do before filing PERM?

Start with the calendar and the duties, not with the advertisement. List every involuntary separation in the six months before your planned filing date, run each through the four filters above, and decide which laid-off workers are potentially qualified for the sponsored job. Send each of them a specific notice of the specific job, consider everyone who answers against the stated requirements and the on-the-job-training rule, and write down what happened while it is happening. If a laid-off worker is able, willing, qualified and available for the job, the application cannot be certified. Whether to hire that person is your decision, but the PERM case for that job ends there.

If the layoff is still recent and large, the cleaner choice may be to wait until the six-month window has passed for the affected occupation, as long as the delay does not put the sponsored worker’s status at risk. That is a timing decision best made before recruitment starts, together with the prevailing wage request and a realistic look at whether the company can show ability to pay the offered wage after a hard year. If your company has had layoffs and is weighing sponsorship, or you are a worker whose employer has been named, contact us. The documentation that protects a PERM case has to be built at the time, not reconstructed after a letter arrives.

Is That Really Your Immigration Lawyer? How Scammers Impersonate Attorneys on WhatsApp

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A prairie ground nest in dry grass at dusk holding four speckled eggs and one smooth olive egg that does not match.

A man came to our office with a story we have heard in several forms this year. Decades ago an immigration judge ordered him removed, but his country would not take him back, so the government released him on an order of supervision with a work permit it renews every year. He had worked steadily since, stayed out of trouble, and built a life. Then, at a low moment after a loss in his family, a “Miami immigration lawyer” reached him on WhatsApp. For about $3,000, the lawyer said, he could file for a green card.

He did not come in saying “a lawyer on WhatsApp told me.” He came in saying “my friend tells me I can fix this.” The scammer had become a friend. We had told him years earlier that the law gave him no green card application to file, and here was someone saying yes. The yes sounded better.

Then we looked at his screenshots. The WhatsApp number was not the number on that Florida lawyer’s website or in the state bar’s directory. It took minutes. Once he saw it, the calls stopped. The lawyer whose name and photo had been used had no idea. This page is about that check, and about the pattern behind it, because in 2026 the person on WhatsApp calling himself your immigration lawyer may not be a lawyer at all.

How does the fake-lawyer scam work?

Someone takes a real immigration lawyer’s name, photo, bar number and sometimes video, builds a page or an ad on Facebook or Instagram, and moves every conversation to WhatsApp. The American Immigration Lawyers Association (AILA) described the wave in February 2026: the schemes began in earnest in mid-2025, “primarily operate on Facebook and WhatsApp,” offer “guaranteed results or fast approvals,” and ask for payments “of $5,000 to as much as $30,000.” Some scammers file nothing; some file fraudulent applications in the victim’s name; some, AILA reports, stage fake virtual “court hearings” with a fake judge and then demand more money. The American Bar Association reported in November 2025 that scammers were using “the names and bar license numbers of legitimate, licensed attorneys” on fake retainer agreements with fake ABA letterhead, and that several reports shared the same email addresses and bank accounts, which the ABA says suggests one or more organized groups may be behind them.

Payment goes by transfer to an individual, a payment app, a gift card or cryptocurrency, never to a law firm’s trust account. The news coverage names the AI layer too: in June 2026 NBC News reported on a Florida immigration lawyer whose “image and name and even his voice” had been cloned to make videos promising “U.S. citizenship without an exam, immediate work permit,” and who, NBC reported, says the conversation “always follows the same script”: it “begins on social media, continues through private messaging and culminates with a WhatsApp invitation.” His own answer to the problem, NBC reported, was to close every WhatsApp channel his firm had, so that any WhatsApp message in his name is a fraud by definition. In June 2026 alone, a takedown service he hired removed more than 6,600 fake videos and profiles, he told WLRN in August. We come back to that idea below, because it is ours too.

In our office the pattern is simpler than the national coverage makes it sound. The ad may begin on Facebook or Instagram, but the conversation and the money move to WhatsApp every time. We have not yet seen a case where the whole scam stayed on Facebook. (Meta owns all three platforms; AILA, citing a Reuters investigation, says Meta’s platforms “remain the most common locations for these scams.”) The mechanics of the money, including the second scam that follows, in which someone calls offering to recover what you lost for a fee, are the same as in the fake job-offer visa scam we have already written about, so we will not repeat them here.

Why does it work on careful people?

It works because it arrives through a friend, and because it promises what the law does not allow. Those are the two tells, and they are the two things a family member or a real lawyer can ask about.

The first is the friend. Nobody in our office has ever heard a victim say “a stranger on WhatsApp says.” They say “my friend,” because by the time money changes hands there have been weeks of warm, patient messages, voice notes, maybe a video of the lawyer’s face. The question that cuts through it is not “is that lawyer any good?” It is “who exactly are you talking to? Show me.” A real friend can show you. A scam dissolves when someone asks to see the number.

The second is the law. The man in our office has a final removal order. Once an immigration judge orders removal, USCIS generally cannot take a green card application from that person; the regulation gives the immigration court “exclusive jurisdiction” over adjustment of status for anyone who has been placed in proceedings, other than someone the government treated as an “arriving alien” at the border (8 CFR 1245.2(a)(1)), and for him the way back to the court is a motion to reopen that the statute says must be filed within 90 days of the order (INA § 240(c)(7)(C)(i)), with narrow exceptions; a criminal ground stood in his way on top of that. There was no $3,000 form. The scam worked only because it offered the thing the law forbids, and the real lawyer’s “no” is exactly why the fake lawyer’s “yes” sounded so good. Which gives you a rule you can use without knowing any law: an offer to fix what a licensed lawyer has already told you cannot be fixed is not a second opinion. It is the proof. No lawyer guarantees a result, and no lawyer who has never seen your file can tell you that you qualify.

Fear does the rest. Policy changes, program terminations and detention news in 2025 and 2026 have sent people looking for help fast, and “fast,” “guaranteed” and “special program” are the words these ads use. We have seen the asylum version of this more than once: people who paid thousands to a WhatsApp contact for “asylum help,” then came to a real lawyer with the money gone. In one case the person had already sat through a consultation with us, heard our advice, and returned months later having paid around $10,000 to the WhatsApp contact instead.

How do I check whether the lawyer is real?

Check the phone number. That is the whole test, and it takes minutes. Open the lawyer’s own website, not a link the WhatsApp contact sent you, and compare the number there with the number in the chat. If they differ, you are not talking to the lawyer. Then call the number on the website and ask whether the firm knows about the ad or the message you followed. AILA’s advice is to verify “both the person and the organization“: it is not enough that a lawyer by that name exists; the person messaging you has to actually work where they say they work, and the real firm should know about the ad you answered.

The state bar directory tells you whether the person is a licensed lawyer and whether the license is active. Every state has one; in Montana it is the State Bar of Montana attorney search, which shows a lawyer’s status (“Active Attorney”) and admission date but not a phone number, so the website is still where you confirm the number. Some bars now post an alert on a lawyer’s profile when that lawyer reports being impersonated; the Florida Bar, for example, can place a temporary alert on the member’s public profile, according to a June 2026 Florida Bar News report. For free or low-cost help from a nonprofit, the Immigration Advocates Network directory lists only nonprofit providers, and CLINIC’s affiliate directory lists Catholic Charities and similar agencies. For a private lawyer, AILA’s lawyer search lists members by state. Only a licensed attorney or a Department of Justice-accredited representative at a recognized organization can give you immigration legal advice; “the lawyer’s assistant,” with no name and no office, is neither. If you want to know how to read what you find about a lawyer online, our page on reading immigration lawyer reviews covers it; this page adds the step that comes first, which is making sure the person behind the reviews is the person you are talking to.

What if I already paid?

Stop paying, keep everything, and report it. Send no more money no matter what is threatened or promised. Keep the chat, the phone numbers, every receipt and the name the money went to; screenshots are evidence. Report the scam to USCIS, whose reporting page says plainly: “Reporting scams will not affect your immigration application or petition.” Report it also to the Federal Trade Commission at ReportFraud.ftc.gov, to the immigration court system’s EOIR Fraud and Abuse Prevention Program by email, and to your local police. Two more reports matter in this particular scam: tell the bar of the state where the real lawyer is licensed, so it can post an alert, and tell the real lawyer, who can act against the fake pages. Then expect the recovery call, and refuse it.

Now the candid part. Money sent by transfer, app, gift card or cryptocurrency to a person who does not exist is, realistically, gone. Reporting still matters because it documents the crime and warns the next person, but do not pay anyone who promises to get it back. What a real lawyer can still do is look at your actual case: if a fraudulent application was filed in your name, it has to be found and dealt with, and if nothing was filed, the deadlines you were told were handled may still be running. Our page on what to do when your immigration firm is accused of fraud walks through reconstructing a file; the difference here is that there was never a firm at all.

What are real law firms doing about it?

Lawyers who are being impersonated now treat it as identity theft. AILA’s October 2026 practice note (members only) describes the route that works fastest: register a trademark in the firm’s name, enroll in Meta’s Brand Rights Protection program, and report the fake pages, which Meta says it removes once a report is verified. Some firms, like the Florida lawyer above, have hired takedown services; some bars post alerts; some lawyers have shut down their own WhatsApp lines so that no one can confuse a real one with a fake one. None of that protects you directly. The phone-number check does.

How to reach Immigration Law of Montana, and how we will never reach you

We have never used WhatsApp or Facebook Messenger for anything, and we do not intend to. A law office already has a phone system, and ours gives every member of our staff a firm number; when we contact you it is by phone, text or email from one of those numbers or from an email address ending in @immigrationlawofmt.com, never from a personal cell and never through a messaging app. We do not contact prospective clients first through social media. We never ask for payment by gift card, cryptocurrency, or transfer to an individual.

Our official channels are this website, our office at 8400 Clark Road, Shepherd, Montana 59079, our office phone, 406-373-9828 (which accepts text messages), our after-hours line, 406-545-6378, and the accounts listed on our social media page: Facebook, X and LinkedIn. If a message in our name comes from anywhere else, it is not from us, and we would like to hear about it.

The sentence worth remembering is the one that ended the call in our office: if the number in the chat is not the number on the website, you are not talking to the lawyer.

USCIS Sent You an FBI Privacy Notice. Here Is What It Is Really Telling You

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Center-pivot irrigator still spraying water across a lush green field at golden-hour dusk, rolling hills behind.

If you have a green card application, a citizenship application, or another case pending with USCIS, you may have received a one-page letter titled “FBI Privacy Requirements for Biometrics Collection by USCIS.” It carries no receipt number. It says USCIS is explaining your rights “related to enrollment in the FBI’s continuous vetting process.” And in bold type it says: “You do not need to take any further action at this time.”

The short answer: the letter is genuine, and you do not need to reply to it. But it tells you something that matters. Your fingerprint check has become an ongoing check. Your prints can stay on file with the FBI after your case is decided, and new criminal history information about you can reach USCIS without you filing anything. This article explains what the letter is, why it arrived now, what changed in 2026, and the five things worth doing about it.

What is the USCIS “FBI Privacy Requirements” letter, and do I need to do anything?

You do not need to respond. The letter says so itself, and adds: “You will receive a separate notice if USCIS needs any additional information.” It opens by explaining that “Since 2017, USCIS has been transitioning from performing point-in-time screening and vetting checks, to an event-based process known as Continuous Immigration Vetting (CIV).” It then tells you it is explaining your rights “related to enrollment in the FBI’s continuous vetting process, which checks criminal history records as required by the FBI.”

The rights it lists come from a notice that the FBI requires of every agency that sends fingerprints to it for a background check that is not part of a criminal case. That kind of check covers jobs, licenses, security clearances and immigration benefits. A Justice Department regulation, 28 CFR 50.12(b), requires the agency to tell the person fingerprinted that the prints “will be used to check the criminal history records of the FBI.” It also requires the agency to give the person a chance to complete or challenge that record before it acts on it.

The FBI’s own one-page summary, Noncriminal Justice Applicant’s Privacy Rights, names “an immigration or naturalization matter” as one of the purposes it covers. The USCIS letter restates those rights under four headings: notification, access and review, correction, and use and sharing. Put in plain terms, you have these rights:

  • to be told in writing why your fingerprints are collected, and whether they will be searched, shared or kept;
  • to see your own FBI record, either from the agency, if its policy allows, or by requesting it from the FBI yourself;
  • to challenge anything in that record that is wrong or incomplete, and to have a reasonable time to fix it before a decision is made against you on the strength of it;
  • to have the record used only for authorized purposes.

The letter is not a request for evidence. It is not an interview notice, and it is not an accusation. It does not mean anything was found. Keep it with your immigration papers and move on to the part that matters, below.

Why did I get this letter now, months after my fingerprint appointment?

The letter gives the reason in its first paragraph: enrollment in the FBI’s continuous vetting process. Beyond the letter itself, USCIS has not published an explanation of the September 2026 mailing as of September 29, 2026. The public record fills in the rest.

Firms across the country report the same wave. In late September 2026, immigration practices, including Capitol Immigration Law Group (September 28, 2026), reported that these letters were arriving in bulk for people with pending cases. Our own office received a copy dated September 25, 2026.

USCIS said in March 2026 that it was building an automatic link. In its alert on strengthened screening and vetting (released March 30, 2026, last updated June 12, 2026), USCIS listed among its new measures “Developing system connectivity for automatic notifications of biometric matches and new criminal information.”

The FBI requires this kind of notice before an agency keeps prints on standing watch. The FBI runs a service called Rap Back, under which an agency’s fingerprints stay in the FBI’s Next Generation Identification (NGI) system and are searched continuously instead of once. The FBI’s privacy impact assessment for Rap Back (June 2025) says individuals “must receive a notice that contains the requirements of 28 CFR 50.12.” It also says the agency must plan how that notice reaches “legacy populations for whom fingerprints have already been retained” in NGI. A mass mailing to people fingerprinted months ago is what that requirement would look like in practice.

Our reading, which USCIS has not confirmed as of September 29, 2026: the “FBI’s continuous vetting process” the letter refers to is Rap Back, and the September mailing is the notice the FBI requires for people whose fingerprints were already on file. The advice below does not depend on the program’s name. It holds either way.

Why did my lawyer get a copy?

If an attorney filed your case with a Form G-28, USCIS sends the attorney a copy of notices it sends you. That is why a law firm may receive a copy addressed “in care of” the lawyer, sometimes with no receipt number on the page. A copy to your lawyer does not mean your case was singled out.

Is my background check no longer a one-time event?

Increasingly, no. Until recently, most people could think of the fingerprint check as a snapshot. You gave prints at an application support center, the FBI ran them against its records, USCIS got a result, and the check was done. If the case took long enough for the result to go stale, USCIS ran it again. Either way, it was one check at a time.

Two-row timeline comparing a one-time fingerprint check at the biometrics appointment with continuous vetting that runs from filing, through approval and years as a green card holder, until naturalization.
A snapshot check versus a standing watch. Continuous vetting keeps running after your case is approved.

Two programs have been replacing that snapshot with a standing watch. They are different programs run by different agencies. The September letter mentions both in its first paragraph, and much of what has been written about it treats them as one.

The FBI side: your prints can stay on file and keep being searched. The FBI’s standard Privacy Act Statement for civil fingerprints, which is printed on the back of USCIS biometrics appointment notices (Form I-797C), says: “The FBI may retain your fingerprints and associated information/biometrics in NGI after the completion of this application and, while retained, your fingerprints may continue to be compared against other fingerprints submitted to or retained by NGI.” Under Rap Back, the FBI’s assessment says, “Authorized agencies will receive electronic notification of any arrest of the individual.” It lists “immigration benefits” among the purposes for which people give fingerprints that can be enrolled.

The DHS side: continuous immigration vetting, since 2017. USCIS has run its own program, called Continuous Immigration Vetting, since 2017. It screens case information through DHS systems for new national security concerns, rather than checking once at filing. The program’s privacy impact assessment (DHS/USCIS/PIA-076, February 2019) says USCIS was “incrementally expanding” the program to cover applications and petitions “throughout the duration of the benefit or status, until the individual becomes a naturalized U.S. Citizen.” As described in 2019, that program was limited to national security screening. The FBI’s criminal-record watch is the piece now being connected.

The practical meaning of the two together: for someone who is not yet a U.S. citizen, the record check no longer ends when the case is approved.

Why might records I thought were gone show up now?

Because, according to law firms reporting on internal USCIS guidance, USCIS began receiving a fuller FBI record in 2026 than it used to.

On February 6, 2026, Executive Order 14385 directed the Attorney General to “provide DHS with access, for purposes related to DHS’s screening and vetting missions and to the maximum extent permitted by law, to CHRI available to or maintained by the Department of Justice.” CHRI means criminal history record information.

USCIS has not published its implementing guidance as of September 29, 2026. Law firms reporting on internal guidance say that, effective April 27, 2026, USCIS began receiving “enhanced criminal history record information” for fingerprint checks run through the FBI’s NGI system. Officers were reportedly told not to approve certain pending cases until the enhanced checks were done, and to re-run checks where the FBI result predated April 27 (Fredrikson, June 8, 2026). One firm warned that the enhanced checks may lead to requests for evidence about arrests that never led to a conviction and about juvenile records (Gunster, June 11, 2026).

You may read online that USCIS now sees sealed and expunged records. As of September 29, 2026, we have found no government source that says so, and the executive order is silent on the point. Do not plan around it either way, because for immigration purposes it rarely changes the answer. An expunged conviction is still a conviction in immigration law, with narrow exceptions. The immigration forms ask about arrests, not only convictions. So the question to ask is not “can they see it?” The question is “does the form ask about it?” The answer is usually yes.

How long does the continuous check last?

Until you become a U.S. citizen. That is the endpoint USCIS itself gave in 2019. Its privacy impact assessment describes vetting that runs from the first filing “until the individual becomes a naturalized U.S. citizen and is issued a naturalization certificate.” In the same document USCIS acknowledged the impact on people “who may hold lawful permanent resident status in the United States for an indefinite period of time without filing for naturalization.” For a green card holder, the watch has no fixed end date short of citizenship.

A proposed rule would go further and write this into the regulations. The biometrics rule proposed on November 3, 2025 (90 FR 49062) says any noncitizen present in the United States after an approved benefit “may be required to submit biometrics or undergo biometric-based screening and vetting unless and until they are granted U.S. citizenship.” It would also require biometrics from U.S. citizen petitioners as a general rule. As of September 29, 2026, that rule is not final. The government’s Fall 2025 regulatory agenda lists a final rule for December 2026. Until a final rule is published, USCIS works under its existing authority, which is already broad.

What should I do now that my fingerprints are on continuous watch?

The letter says no action is required, and that is true of the letter. These five steps are about the record behind it.

1. Get your own FBI record before you file or go to an interview

The simplest way to avoid a surprise is to see what the officer will see. The FBI will send you your own record, called an Identity History Summary, under 28 CFR 16.32. As of September 29, 2026, the FBI’s Identity History Summary page lists the fee as $18. The fastest route is an online request through edo.cjis.gov, with electronic fingerprints at a participating post office, which may charge its own fee. Bring the result to your lawyer before anything is filed. A clean summary is reassuring. A summary with entries you did not expect is exactly what you want to learn about first. A clean FBI summary is not the whole picture, though: it never contained a case nobody took fingerprints for. Our guide to the three criminal records and how to pull each one covers the state name search and the court files as well.

2. Fix arrests that show no final outcome

A common problem on an FBI record is an arrest with no disposition, meaning the record shows the arrest but not that the charge was dismissed, reduced or resolved. An officer who sees an arrest with no outcome has to ask what happened, and that question can stop a case. The fix is paperwork. Get a certified copy of the court’s final disposition. Then have the record corrected under 28 CFR 16.34, either through the agency that sent the arrest to the FBI or through the FBI’s online challenge process. File the certified disposition with your immigration case either way.

3. Disclose everything the forms ask about, including cases that were dismissed or sealed

Immigration forms ask whether you have ever been arrested, cited, charged or detained, not only whether you were convicted. A record USCIS can see and you did not list turns a small problem into a credibility problem, and credibility problems are much harder to fix than old arrests. Our article on answering “no” when the honest answer is “yes” walks through how these questions are read. Our plan for a pending green card under the 2026 discretion memo also has readers inventory dismissed and sealed arrests before filing.

4. Assume an arrest after approval will be known

This is the change most green card holders have not absorbed. Under a snapshot system, an arrest two years after approval might not come to USCIS’s attention until the next filing, often the citizenship application. Under a standing watch, it can arrive as it happens. If you are a permanent resident and you are arrested for anything beyond a minor traffic matter, talk to an immigration lawyer before you plead to anything. Talk to one before you travel abroad, too. Our article on green card holders with pending criminal charges explains why a trip abroad with a pending charge carries its own risk.

5. Treat the citizenship application as the moment the whole file is read

Naturalization is where everything in the record meets a decision. If you are a permanent resident planning to apply, the steps above belong before you file, not after. Our article Naturalization Is an Audit explains what USCIS re-opens when you file Form N-400 and how to read your own file first.

My case is on hold. Is this why, and what can I do?

Possibly, but the letter itself is not the hold. As of September 29, 2026, the holds most people are experiencing trace to two separate things.

The April 27 re-check. Firms reported in May and June 2026 that USCIS paused decisions on some cases where fingerprints were taken before April 27, 2026, until the enhanced FBI check was completed. One firm reported that new fingerprint appointments were generally not expected, because USCIS could re-run the prints it already had (Pryor Cashman, May 14, 2026). If you are asked to appear again, go. A missed biometrics appointment is generally treated as abandonment (see below).

The country-based hold memos. These were separate from the fingerprint check. A federal court in Rhode Island vacated the USCIS policies that held cases filed by nationals of travel-ban countries (USCIS alert, June 12, 2026). On appeal, the First Circuit let USCIS resume only its re-review of certain already-approved benefits while the case continues (August 14, 2026, as reported by Fragomen). That litigation is ongoing as of September 29, 2026 (First Circuit No. 26-1703).

If your citizenship interview is behind you, the law gives you a clock. If USCIS has not decided the N-400 within 120 days after the interview, you can ask a federal district court to decide it or to order USCIS to act. Our page on the 120-day right to federal court explains when that tool fits and when it does not. For other case types stuck well beyond normal processing, a federal lawsuit asking the court to compel a decision is sometimes the right tool. It is a judgment call that depends on the case, and it should be made with a lawyer who has read the file.

I am a U.S. citizen sponsoring a relative. Why did USCIS ask for my fingerprints?

USCIS can require fingerprints from anyone connected to a case, including the citizen who files a family petition. The regulation, 8 CFR 103.2(b)(9), says USCIS “may require any applicant, petitioner, sponsor, beneficiary, or individual filing a benefit request” to appear for biometrics. The proposed rule described above would make petitioner fingerprints routine, but as of September 29, 2026, it has not taken effect. So when a citizen petitioner is printed today, it is usually for a specific reason.

The most common reason, in our experience, is the Adam Walsh Act check. Federal law bars a U.S. citizen “convicted of a specified offense against a minor” from sponsoring a family member unless DHS finds the citizen poses no risk to that relative (INA § 204(a)(1)(A)(viii)). USCIS runs that check when it decides the petition. In the cases we have seen, a fingerprint request to a petitioner has most often followed a possible name match: someone with a similar name and birth date has a record. Fingerprints settle the question, usually in the petitioner’s favor. The request is not an accusation. It is often a sign the file has reached an officer.

The appointment notice will carry a code number. The code tells you what will be collected, such as fingerprints only or a photo and signature as well. It does not tell you why USCIS asked.

Do not miss the appointment

This is the part that costs people their cases. Under 8 CFR 103.2(b)(13)(ii), if someone USCIS requires to appear for biometrics does not appear, the case “shall be considered abandoned and denied.” The exception is when, by the appointment time, USCIS has received a change of address or a rescheduling request that it accepts. The USCIS Policy Manual sets out how to ask for a new date. The appointment notice itself says the same thing: the request must be made “before the date and time of the original appointment,” and you must show good cause, such as illness, a medical appointment, or a notice that arrived too late. Make the request through your USCIS online account or the USCIS Contact Center. If you have a lawyer on the case, the lawyer can make the request for you. If a serious ongoing medical condition keeps you at home or in the hospital, the notice explains how to ask for a mobile biometrics appointment, which is available inside the United States.

If you live abroad, say so right away. The Form I-130 instructions say: “If you are currently overseas, your notice will instruct you to contact a U.S. Embassy, U.S. Consulate, or USCIS office outside the United States to schedule an appointment.” A citizen who moved abroad without updating the mailing address on the petition may instead receive an appointment at a U.S. office near the old address. The fix starts with a timely rescheduling request and the new address. U.S. citizens have no duty to report address changes the way noncitizens do, but a stale address sends the appointment to the wrong place.

Why it matters even if the petitioner cannot easily travel: a spousal petition that is pending or approved when the citizen dies is converted by regulation into a widow or widower petition (8 CFR 204.2(i)(1)(iv)), as long as the surviving spouse meets the widow’s requirements on the date of death. A petition denied as abandoned converts into nothing. Our page on what happens when a citizen spouse dies during the case explains that protection. It is one more reason to keep the petition alive, even when fingerprinting is a nuisance.

Common questions about the letter

Is the FBI privacy letter a scam?

The genuine letter comes from USCIS, describes your FBI record rights, and asks for nothing. It does not ask for payment, personal information or a phone call. Any message that uses this letter as a reason to ask you for money or documents is not from USCIS. Check anything unexpected against your USCIS online account or with your lawyer.

Does the letter mean I am under investigation?

No. It is a notice that goes to people whose fingerprints USCIS sent to the FBI. It does not say anything was found, and by law firms’ accounts the September 2026 mailing went to large numbers of applicants at once.

Can I opt out of continuous vetting?

Not in any practical sense. The FBI’s Rap Back assessment says a person who wants out of recurring checks “must work through the original submitting agency to request removal.” For an immigration applicant, that agency is USCIS, which is the agency that decides the case. Declining to give fingerprints at all is not an option either. Refusing required biometrics generally leads to the abandonment denial described above.

Does this apply to green card holders, or only to pending cases?

The September 2026 letters reported so far went to people with pending cases. But the 2019 USCIS assessment describes vetting that continues through lawful permanent residence until naturalization. So a green card holder should assume the record is still being watched, and should read the steps above as applying to them.

The mistake to avoid

The letter’s instruction, that no action is needed, is accurate and easy to misread. It means you need not respond to the letter. It does not mean nothing changed. What changed is that the record USCIS reads is fuller than before and no longer frozen at your fingerprint appointment. The people this will hurt are the ones who assume an old arrest is invisible, a dismissed case does not need listing, or an arrest after approval will never come up. The people it will not hurt have read their own FBI record, fixed what can be fixed, and answered every question on the forms as the law reads it.

If this letter arrived for a case we are handling, you do not need to call us about the letter itself. If you have a pending case with anything in your history you are unsure about, or you are a green card holder planning to apply for citizenship, contact our office and we will read the record with you before USCIS does.

Naturalization Is an Audit of Everything That Came Before It

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An old wooden filing cabinet with every drawer pulled open in an empty, sunlit room.

Most people treat the N-400 as the easy last step. The hard part was the green card; citizenship is the reward for keeping it. I understand why it looks that way, and I want to explain, as plainly as I can, why it is not. Naturalization is the only immigration benefit whose denial can cost you the status you already hold. Every earlier approval in your life, the visa, the admission, the removal of conditions, was granted on a narrower record, to answer a narrower question. The N-400 is the first time the government re-reads the entire file, back to the day you became a resident, and asks whether all of it was right.

I am not writing this to talk anyone out of citizenship. Most of my clients should file, and most of them will be approved. I am writing it because the decision to file is a decision to invite that review, and it deserves to be made deliberately, with your own file in front of you, rather than by mailing a form and hoping. This article explains what USCIS actually re-opens, why there is no time limit on the part that matters most, what happens when the answer is bad, and what to do before you file so that the answer is not a surprise.

Why is the N-400 different from every other immigration application?

Because it is the only application whose denial can reach back and take what you already have. If a work visa is denied, you do not have the visa. If an N-400 is denied because USCIS concludes your green card should never have been issued, you do not merely lack citizenship; the agency has just put in writing that, in its view, you were never a lawful permanent resident at all.

The reason is a single sentence in the statute. INA § 318 says that no person may be naturalized unless he or she has been “lawfully admitted to the United States for permanent residence in accordance with all applicable provisions” of the immigration laws, and it puts the burden of proving that on the applicant. USCIS reads the sentence strictly. Put in plain terms, its Policy Manual says that if the green card was not lawfully obtained, for any reason, the applicant cannot naturalize, and it does not matter that USCIS admitted the person as a resident and issued the card. “Any reason” includes a misrepresentation in the original case, but it also includes a plain government mistake in approving it, with no dishonesty by anyone.

Every other requirement of naturalization looks forward or looks at a window: five years of residence, thirty months of physical presence, good moral character during the statutory period, English and civics. This one looks all the way back. That asymmetry is the whole subject of this article, and it is why our page on what happens when an N-400 is denied, linked further down, now treats “not lawfully admitted” as a category of its own, different in kind from the other three.

The closest thing most Americans know is an IRS audit: the government goes through everything and makes you prove it. The comparison is fair as far as it goes, and it fails in exactly two places, both of which make naturalization worse. A tax audit is bounded by a statute of limitations; under 26 U.S.C. § 6501 the IRS ordinarily has three years, six if you left more than a quarter of your income off the return, and unlimited time only for a fraudulent return. And a tax audit is something the IRS does to you. The naturalization audit has no limitation period on the question that matters most, and it begins only when you ask for it, by filing.

Is the government really looking harder at naturalization right now?

Yes, and unlike a lot of what circulates online about this subject, it is measurable from official documents. Three of them matter.

The first is a Department of Justice memorandum. On June 11, 2025, the Assistant Attorney General for the Civil Division issued enforcement priorities that include this sentence: “The Civil Division shall prioritize and maximally pursue denaturalization proceedings in all cases permitted by law and supported by the evidence.” The memo lists ten categories of cases, the fourth being “individuals who committed felonies that were not disclosed during the naturalization process,” and closes by saying the categories do not limit the Division from pursuing any particular case.

The second is the count. TRAC, the nonpartisan data project at Syracuse, compiled every civil denaturalization complaint it could find in the federal courts and reported on June 17, 2026 that the government historically filed fewer than one such lawsuit a month, that it filed eight in all of 2025, and that it then filed at least fifteen in May 2026 and eighteen more in the first twelve days of June. Those are the figures as of June 12, 2026, and the trend has continued since: TRAC’s follow-up report of August 21, 2026 counted at least fifty complaints filed in July 2026 alone, an all-time high, and at least 105 in the first seven months of the year. On July 20, 2026, DHS and DOJ announced ten more complaints filed in the preceding thirty days, with the Civil Division’s chief quoted as saying, “We’ve only scratched the surface — many more complaints are coming.”

The third is the one that touches every applicant, not only the people in those press releases. Effective August 25, 2026, USCIS reinstated neighborhood investigations under INA § 335(a) for naturalization applicants. The next section explains what that means in practice.

I want to be careful about what these documents prove and what they do not. The people named in the DHS announcement are accused, not adjudicated; the release itself says the claims are allegations only. And nothing in these documents changes the law of naturalization by a single word. What they change is the probability that an old problem in a file is found, and the consequences when it is. That is a different thing from a change in the rules, and it is the thing an applicant can actually plan around.

What does USCIS re-open when I file for citizenship?

Everything, in three layers: your file, the government’s databases, and, as of August 25, 2026, your neighborhood.

The file first. An N-400 puts the adjudicating officer in front of your complete A-file, which holds every application you have ever filed with the immigration agencies and every decision made on them. The officer is not limited to the answers on the new form. The form itself asks, in its exact words, “Have you EVER given any U.S. Government officials any information or documentation that was false, fraudulent, or misleading?” and, separately, whether you have ever committed a crime for which you were not arrested. Those questions are answered against the file, not against your memory of it. If the marriage described in a petition twenty years ago does not match the household described in the tax returns of the same years, the officer is reading both.

The databases second. USCIS collects biometrics regardless of age, runs an FBI name check, and runs whatever other security checks its Policy Manual describes as necessary. The practical meaning is that a fingerprint taken at a border in 1999 under a different name is now matched to the fingerprint taken for the N-400. TRAC’s report traces the current wave of cases in part to the revival of exactly that kind of historical fingerprint review.

The neighborhood third. Under the guidance that took effect August 25, 2026, described in Volume 12, Part B, Chapter 2 of the Policy Manual, a USCIS investigator may interview neighbors, landlords, employers, coworkers, and business contacts before your interview is even scheduled. Put in plain terms, the manual says the investigation should cover at least the five years before filing but may go further back and may extend outside the United States; that the topics include your marriages and their endings, your employment, your criminal history, your travel, your reputation, and your “credibility and truthfulness”; and that USCIS may waive the investigation in a particular case, for example where the applicant has submitted character letters from citizens who know them, at least two of which should accompany the N-400 if you want the waiver considered. Letters from family do not count.

None of this is new authority. The statute has authorized personal investigations for decades, and so have the fingerprint and name-check layers. What is new is that all three layers are being used at once, on the same file, with a directive from the Justice Department sitting behind them.

Is there a time limit on what USCIS can hold against me?

It depends on which requirement you are talking about, and the difference is the most important thing on this page.

For good moral character, there is a window. The statute requires it during the statutory period, five years for most applicants and three for the spouses of citizens, and most of the specific bars in INA § 101(f) are tied to that period. For a spouse, the three years start on a specific date, explained in when the three-year period starts for spouses of citizens. The window is not a wall: the regulation at 8 C.F.R. § 316.10(a)(2) allows USCIS to consider conduct before the period if it bears on your character now, and a few bars, such as an aggravated felony conviction, apply “at any time.” But for the ordinary problem, an old arrest, a false answer on an earlier form, an unfiled tax year, the window means that a problem can be outlived. A person who waits, files taxes, and stays clear of trouble can present a different five years than the five years that would have failed. Our page on criminal convictions and immigration status explains which offenses are time-limited and which are permanent bars.

For lawful admission, there is no window at all. The Board of Immigration Appeals held in Matter of Koloamatangi, 23 I&N Dec. 548, 551 (BIA 2003), that a person whose status was obtained by fraud “is deemed, ab initio, never to have obtained lawful permanent resident status once his original ineligibility therefor is determined in proceedings.” Ab initio means from the beginning. A defect in an admission in 2001 is exactly as disqualifying in 2026 as it was in 2002, and nothing you have done in the intervening years, no taxes, no clean record, no citizen children, changes it, because the problem is in the status itself rather than in your conduct since. This is the difference that people miss when they assume that time heals an immigration file. It heals the good-moral-character file. It does not touch the admission file, and the admission file is the one the N-400 opens.

And for the person who has already naturalized, the clock does not run either. INA § 340(a) lets the government sue in federal court to revoke a naturalization that was “illegally procured or were procured by concealment of a material fact or by willful misrepresentation,” and the revocation is effective as of the original date of the naturalization. The July 2026 DHS announcement illustrates the reach: one complaint concerns a man admitted in 1996 and naturalized in 2005, another a man admitted in 1987 who applied for citizenship in 1997, a third a man who naturalized in 2011 and was convicted in 2022 for conduct in 2007. Those are allegations, not findings. But the dates are the point. There was no year in which any of those files became safe.

What happens if the N-400 is denied because of my green card case?

The denial is not the end of the process; it is the beginning of a different one, and the next move belongs to the government.

When USCIS denies an N-400 because it has concluded the applicant was inadmissible at the time of admission, its own policy directs it to issue a Notice to Appear. The February 2025 NTA memorandum, PM-602-0187, names that exact situation among the naturalization cases in which a notice will issue unless USCIS chooses, in its discretion, not to. In plain terms, the finding that denied the N-400 becomes the charge in immigration court, and the person who filed for citizenship is now a respondent in removal proceedings, where the question is whether the green card can be kept at all.

Two instincts at that moment are dangerous. The first is to refile, on the theory that a different officer might see it differently; refiling invites the agency to act on the finding it has already made. The second is to appeal alone, through the N-336 hearing, as though this were a residence or tax problem; the N-336 is not where a lawful-admission finding gets decided. Our page on N-400 denials after the interview walks through the appeal and its limits, and our guide to what happens when the government says your green card was never valid explains the defense that exists in immigration court, including a fraud waiver that requires no showing of hardship but that can be requested only before a judge, in a case you cannot start yourself. I will not repeat that material here. The point for a person who has not yet filed is simpler: the worst outcome of an N-400 is not a denial. It is a denial that starts a removal case.

Is it safer never to file?

No. Not filing is quiet. It is not safe, and it is important not to confuse the two.

Whatever is in your file is in your file whether or not you ever send USCIS another form. The same A-file is opened when you renew the card, when you sponsor a relative, when you are questioned at a port of entry returning from a trip, and, above all, when you are arrested. Since the Laken Riley Act of January 2025, the mandatory-detention statute at 8 U.S.C. § 1226(c)(1)(E) has reached a person who is inadmissible for a misrepresentation and who is merely charged with, not convicted of, a theft or shoplifting offense; that person is taken into custody when released by the police, and nothing about whether they ever filed an N-400 enters into it. A defect in an admission is a fact about the person’s status. The N-400 is only the most common way it gets noticed.

There is a harder version of this question, and I would rather name it than pretend it away. “Correct it along the way” assumes that correction is available and that the act of correcting does not itself trigger the review. Often it does. Amending an earlier answer, or disclosing on the N-400 what an earlier form omitted, tells the officer where to look. That is a real tension, and I do not think an honest article can resolve it with a slogan. What it can say is that the tension is a reason to know what is in the file before deciding anything, because the choice is not between filing and not filing. It is between deciding with the file in front of you and deciding blind.

What should I do before I file an N-400?

Read your own file before USCIS does. Concretely, that means three things, in this order.

First, get the A-file. It is requested from USCIS through its online FOIA system at first.uscis.gov, and it is a different record from the immigration court file; our guide to getting your immigration court records explains the difference and why anyone whose history includes a border encounter or an asylum interview usually needs both. The A-file is where the answer to the lawful-admission question lives. It holds the petition that started your case, the application you or your family filed, the officer’s notes, and the decision. If any of those is inconsistent with what you will say on the N-400, you want to be the first person to see it.

Second, take the inventory. Our article on lying on immigration forms sets out what I tell every client before an interview: read each question as a legal question, and account for every arrest, citation, organization, job during a period of uncertain work authorization, and public benefit. The N-400 asks about each of these with the word “EVER” in capital letters, and the neighborhood investigation now asks your landlord and your coworkers the same questions. For the reader who adjusted status inside the United States, our article on omissions on Form I-485 covers the earlier form whose answers the N-400 will be compared against. Since September 2026, USCIS has been enrolling applicants in continuous fingerprint vetting, so it is worth pulling your own FBI record as part of this inventory; our article on the USCIS FBI privacy notice and continuous vetting explains how. The FBI summary is fingerprint-based and will not show a citation nobody took prints for, so also run the state name search and get the court files; our records guide on pulling your criminal record before the government does lists all three steps.

Third, sort what you find into three boxes, because the boxes have different answers. The first box is nothing: an accurate file, a clean statutory period, and a case that should be filed, with two character letters attached if you would rather not have investigators at your neighbors’ doors. The second box is a good-moral-character problem inside the window: an unfiled tax year, a recent arrest, a false answer on a form within the last five years. Those are time-limited, and the right answer is often to cure what can be cured and to file when the window closes behind the problem rather than in front of it. The third box is a problem in the admission itself: a marriage, a relationship, an identity, or a prior order that does not match the basis on which the green card was granted. That box has no window, and the fix, if there is one, may exist only in immigration court. For that box the answer is not to file, and not to refile, but to sit down with a lawyer who does removal defense and read the file together before anyone sends anything.

Our naturalization overview covers the ordinary requirements, and for most readers that page and a careful N-400 are all that is needed. This article is for the reader who suspects there is something in the third box.

Why is being counselled away from a filing cheaper than repairing one?

Because the repair is not one step. It is a sequence, and every step of it costs more than the conversation that would have prevented it.

Consider what the third box looks like once the N-400 has been filed and denied. The path back, where one exists at all, runs through a new petition, an adjustment application, a fraud waiver with its own evidence and its own hardship showing, and, if that fails, a case in immigration court that you cannot start yourself and that begins only when the government decides to start it. Each of those has a filing, a wait, a record to build, and a hearing or interview, and each of them is decided by a different officer or judge who reads the same file. I am deliberately not putting a price on that sequence, because any number I gave would be wrong for your case and stale within a year. You can do the arithmetic. The point is that the sequence exists at all only because a form was filed before the file was read.

Set against it is a single meeting. A strategy consultation with the A-file on the table produces one of three answers: file, wait, or do not file, and in the third case it produces a plan for what to do instead. That is the entire service. It is not exciting, and it does not make for a dramatic story, which is exactly why the people who most need it rarely ask for it. The reader who was counselled away from a bad N-400 never becomes a case study on a law firm’s website, because nothing happened to them.

I do not say any of this to suggest that the person with a problem in the file was foolish. Most of the problems I see were made by someone else, a prior preparer, a family member, an officer, twenty years ago, and the person in front of me is the one who inherited them. The reason to read the file first is not that you did something wrong. It is that the government is about to read it, with more tools than it has ever had, and you should not be the last person in the room to know what it says.

If you are a permanent resident in Montana, North Dakota, Wyoming, or elsewhere in the Rocky Mountain West and you are thinking about filing for citizenship, Immigration Law of Montana, P.C. can request your file with you and review it before anything is filed. That conversation is the cheapest thing on this page.

When a Green Card Holder Returns Home with a Criminal Charge: The Supreme Court Has Ruled

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Weathered hand holding a green card above a passport control counter, officer blurred behind

For most lawful permanent residents, returning to the United States after a trip abroad is routine. You present your green card, the officer checks it, and you walk through. The Immigration and Nationality Act reflects that reality: it states that a returning lawful permanent resident “shall not be regarded as seeking an admission” into the United States. You are coming home, not applying for entry.

But that protection has exceptions, and on June 23, 2026, the United States Supreme Court decided how easily the government can invoke the most consequential of them. In Blanche v. Lau, No. 25-429, the Court held, 6-3, that a border officer does not need clear and convincing evidence that a returning green card holder has committed a disqualifying crime before treating that resident as an applicant for admission. A pending charge — not a conviction, not proof — can be enough for the officer to act at the border. The government’s evidentiary burden comes later, at the removal hearing.

If you are a lawful permanent resident with any pending criminal matter, this decision converts what was an open question into settled law: international travel now carries a confirmed, concrete risk. Here is what the Court decided, why the dissent called it “a massive blank check,” and what it means for you.

Two Legal Roads — and Why the Difference Is Enormous

To understand why Blanche v. Lau matters, it helps to know that immigration law provides two separate frameworks for removing a non-citizen from the United States.

The first is deportation under INA § 237. This is the standard track for lawful permanent residents. Under this framework, the government bears the burden of proving — by clear and convincing evidence — that the resident has committed an offense that makes them deportable. The resident is presumed to be a lawful member of the community until the government proves otherwise. Defenses and forms of relief, including cancellation of removal, are available.

The second is inadmissibility under INA § 212. This framework applies to people seeking admission — people who have not yet been formally admitted to the country. Here the burden shifts to the non-citizen to prove they are eligible to enter. The government does not have to prove you are removable; you have to prove you are admissible. Some defenses change as well. Cancellation of removal for long-term permanent residents remains available in principle on either track, but its seven-year residence clock stops on the date the offense was committed, and that rule defeats many residents with an old offense.

A long-term lawful permanent resident placed on the deportation track has real defenses. The same person placed on the inadmissibility track faces a fundamentally different — and harder — fight. The question in Blanche v. Lau was about which track the government is allowed to use, and how much proof it needs at the border to choose the harder one.

What Happened to Muk Choi Lau

Muk Choi Lau, a Chinese citizen, became a lawful permanent resident in 2007. On May 7, 2012, New Jersey charged him with trademark counterfeiting — selling nearly $300,000 worth of counterfeit merchandise. He had not been convicted; the case was pending.

While awaiting trial, Lau traveled to China. On June 15, 2012, he returned through the airport and presented his green card. The officer found the pending charge through a database match. Rather than admitting him as a returning resident, the officer paroled him into the country for deferred inspection — placing him in the legal posture of an arriving alien rather than a returning resident.

Lau pleaded guilty to the New Jersey charge on June 24, 2013. On March 13, 2014, the government initiated removal proceedings — on inadmissibility grounds under § 212, not deportability grounds under § 237. The immigration judge ordered him removed, and the Board of Immigration Appeals affirmed.

In March 2025, the Second Circuit vacated the removal order. It acknowledged that a resident may be regarded as seeking admission after committing a crime involving moral turpitude even without a conviction — but held that the border officer needed clear and convincing evidence of a committed offense at the time of reentry. A pending charge alone was not enough. The court ordered the inadmissibility proceedings terminated, without prejudice to the government charging Lau with deportability based on his now-existing conviction. Because the Second Circuit’s rule conflicted with decisions of the Fifth and Ninth Circuits, the Supreme Court took the case.

What the Supreme Court Held

Justice Thomas, writing for six Justices (Chief Justice Roberts and Justices Alito, Gorsuch, Kavanaugh, and Barrett joined), vacated the Second Circuit’s decision. The holding is direct: “We conclude that the Government properly charged Lau with inadmissibility. Border officers did not have the burden to establish by clear and convincing evidence that Lau had committed a crime involving moral turpitude.” Blanche v. Lau, No. 25-429, slip op. at 9 (U.S. June 23, 2026).

Three points carry the weight of the opinion.

The border is not a courtroom. The clear-and-convincing standard the Second Circuit imposed comes from Board of Immigration Appeals precedent that governs the removal hearing, not the border encounter. In Matter of Valenzuela-Felix, 26 I&N Dec. 53, 57, 64 (BIA 2012), the Board placed the government’s burden “at the time of the removal hearing” — and at Lau’s hearing, the government met it: his guilty plea was clear and convincing evidence that he had committed the crime before he attempted to reenter. The Court declined to add a second, earlier burden on border officers “entrusted with making ‘quick judgments on the spot,'” slip op. at 7 (quoting Luz Munoz v. Holder, 755 F.3d 366, 371 (5th Cir. 2014)), when no such burden appears in the statute.

“Committed” does not mean “convicted.” The statute, 8 U.S.C. § 1101(a)(13)(C)(v), lets the government regard a returning resident as seeking admission if he “has committed” a qualifying offense — and the Court read that word literally. The government may treat a resident as seeking admission as soon as he “committed a” crime involving moral turpitude “even if (as in [Lau’s] case) the conviction occurred” later. Slip op. at 9 (quoting Barton v. Barr, 590 U.S. 222, 232 (2020)). Rejecting the argument that a conviction is required, Justice Thomas was blunt: “One does not commit a conviction.” Slip op. at 9.

The proof comes later. The decision does not eliminate the government’s burden — it locates it at the removal hearing, where the government must still establish, on the evidence produced there, that the resident committed the disqualifying offense. What the officer at the border needs is far less: enough to treat the returning resident as an applicant for admission and parole him in while the case is assembled.

The Dissent: “A Massive Blank Check”

Justice Jackson, joined by Justices Sotomayor and Kagan, wrote a dissent nearly twice the length of the majority opinion. Its core warning is about what the border officer’s judgment now rests on — and what the resident loses the moment it is made.

“A demotion to the status of ‘seeking an admission’ is not costless,” she wrote. “Quite to the contrary, it comes with significant deprivations.” Blanche v. Lau, No. 25-429, slip op. at 8 (Jackson, J., dissenting). The resident loses the procedural footing of an admitted person: the burden flips, and relief that would be available on the deportation track falls away.

On the majority’s reading of “committed,” Justice Jackson invoked first principles: “It is a fundamental maxim in our country that all are innocent until proven guilty.” Slip op. at 17 (Jackson, J., dissenting). Lau’s indictment alone, she argued, could not establish that he had “committed” anything.

And her closing concern is the one every permanent resident should read twice: “I worry that the Court has now handed the Government a massive blank check.” Slip op. at 17 (Jackson, J., dissenting). A border officer who concludes — on a database hit, on a pending charge, on evidence no court has tested — that a returning resident “has committed” a qualifying crime may now reroute that resident onto the harder track, and the check on that judgment comes only later, at a hearing where the resident already stands demoted.

What This Means for Lawful Permanent Residents Now

Before June 23, 2026, this risk was an open question that prudent travelers planned around. It is now confirmed law.

If you are a lawful permanent resident with any pending criminal matter — an open charge, a deferred prosecution, a matter under investigation — the decision to travel internationally is an immigration decision, not just a personal one. You need legal advice before you go.

A pending charge alone can now support the government’s decision to parole you at the border and pursue removal on the inadmissibility track when you return. The government does not need to prove anything to the border officer’s satisfaction beyond what the statute itself requires, and the Supreme Court has held that the statute requires very little at that moment. The stakes of that inspection have risen: the Board is now publishing precedents denying cancellation to long-time residents.

This is not a hypothetical concern for Montana residents. Lawful permanent residents working in agriculture and other industries, people with older matters they consider resolved, and long-term green card holders who have never had reason to think carefully about their immigration status are all potentially affected. A conviction that an immigration attorney might successfully manage in deportation proceedings becomes a much harder problem when the government can pursue it on the inadmissibility track instead — and Blanche v. Lau confirms that your own trip abroad is what hands the government that option.

It is also worth remembering that even a minor conviction — one that would carry no immigration consequence for a permanent resident who stays put — can create real complications at the border when a green card holder returns from international travel. We covered the day-to-day obligations that come with permanent residence, including the risks that travel creates, in our guide to keeping your green card. Blanche v. Lau sits at the intersection of that body of law and the specific vulnerability that international travel creates — and the intersection just became more dangerous.

What to Do

If you are a lawful permanent resident with any pending criminal matter, do not assume that travel will be routine, and do not assume that an unresolved charge is invisible. Database checks at ports of entry surface pending state charges, as Lau’s case shows. Consult an immigration attorney before you book the flight. The conversation is short; the consequences of skipping it can be severe and, after this decision, largely beyond challenge. If you are already back and facing an inadmissibility charge, a § 212(h) waiver can sometimes be requested before the immigration judge.

Immigration Law of Montana has represented lawful permanent residents facing removal proceedings for nearly twenty-five years, including cases involving the criminal grounds of removal and the interaction between pending charges and immigration status. If you have questions about how a criminal matter — resolved or pending — may affect your ability to travel and return, contact our removal defense practice before you travel.

This post analyzes the Supreme Court’s decision in Blanche v. Lau, No. 25-429 (U.S. June 23, 2026). It is for general informational purposes and does not constitute legal advice. Consult a qualified immigration attorney regarding your individual circumstances.

The EB-2 NIW Consulting Scam Leading Immigrants to Court

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Worried tradesman surrounded by floating immigration documents and pointing hands

The pitch sounds like exactly what you have been waiting to hear. You have been in the United States for years without valid status. You work in a skilled trade — plumbing, carpentry, aviation maintenance — and you are good at it. Someone tells you: we can fix your status problem and get you a permanent green card. We file extensions of stay to bridge the gap, then we file an EB-2 National Interest Waiver petition. Your years of skill and experience qualify you. You will have lawful permanent residence.

The price is steep — typically $10,000 to $15,000 or more in consulting fees, plus hundreds of dollars per government filing. But the jackpot is worth it. You will finally be legal.

The scheme does not work. Not because of bad luck or difficult facts. It fails because the core legal claims it rests on are false. The EB-2 NIW is not available to skilled tradespeople as a category. Filing stacked I-539 extensions cannot erase years of unauthorized presence and employment. And when USCIS denies the applications — and it will — the denial can generate a referral to immigration court that puts you in removal proceedings you would never have faced if you had never filed at all.

This article explains the scheme in detail, why each part of it fails legally, and what to do right now if you have already paid for it and filings are pending.

The Pitch: What Victims Are Told

The scheme circulates through social media channels, through community networks, and through consulting operations that target specific national-origin communities — Canadians in some markets, Brazilians and Latin Americans in others. The marketing is sophisticated and the operators are persuasive. Several of the operations we are aware of are run by non-attorneys who have contracted with a licensed attorney in a distant state to technically sign off on the immigration filings, while the consulting firm handles all client contact and charges all fees.

The pitch has two components:

First, the EB-2 National Interest Waiver (NIW): a category of employment-based immigration that waives the usual requirement for an employer sponsor and labor certification, on the theory that the applicant’s work is so beneficial to the United States that requiring the normal employer petition would not serve the national interest. The pitch tells skilled tradespeople that their years of experience in a trade constitutes the kind of expertise USCIS wants. This is false.

Second, the stacked I-539 extensions: multiple Form I-539 applications filed back-to-back, each requesting a period of extension, designed to paper over years of unlawful presence and create the appearance of continuous lawful status. In the cases we have handled, clients were presented with as many as twenty pre-prepared I-539 packets — one for each six-month period over a decade — and instructed to file them themselves and pay the government filing fees out of pocket. The consulting firm prepared the packets. The client did the filing. This is not how legal representation works, and it is not a coincidence. It insulates the consulting operation from direct accountability for what happens when USCIS processes the filings. Form I-539 is about to matter to a much larger group of students: the new F-1 fixed-admission rule will require many to file an I-539 extension of stay to keep their status.

Who Gets Targeted — and Why

Skilled Tradespeople

One consistent target of the EB-2 NIW version of this scheme is immigrants who have built genuine, respected careers in skilled trades. Plumbers with twenty years of experience. Carpenters who have spent decades on construction sites. Aircraft maintenance technicians with impressive credentials. These are people who have worked hard, built real skills, and understandably want a legitimate path to remain in the country where they built those careers.

The scheme exploits that understandable aspiration. It tells them that what they have built matters legally — that USCIS will see the national importance of their work and waive the normal requirements. The truth is more technical and less encouraging, and we address it below.

People With Significant Overstays

A second target is immigrants who have accrued significant periods of unlawful presence — months or years beyond their authorized stay. For this group, the scheme takes on an additional component: the stacked I-539 extensions are supposed to retroactively restore status, creating a bridge between the period of unlawful presence and the pending EB-2 NIW petition.

The people most vulnerable to this version of the scheme are often those with the most to lose. They are out of status, they may have U.S. citizen family members, they have established lives here, and they are terrified of deportation. The prospect of a single solution that fixes both problems — the status gap and the path to permanent residence — is enormously appealing.

The Affiliate Trust Factor

Both versions of this scheme exploit what we might call affiliate trust: the tendency to trust a person or organization more because they share your nationality, language, or community background. The Canadian-targeting operations are run by Canadians. The operations targeting Brazilian immigrants in the United States often have Brazilian principals, communicate in Portuguese, and present themselves as insiders who understand your community’s specific immigration situation.

This trust is not irrational. It is a reasonable heuristic that bad actors systematically exploit. When someone from your own community tells you that they have a path that works, and they speak your language, and they understand your specific situation — the skepticism that might stop you from listening to a stranger gets quieted. This is a feature of the scheme, not an accident.

The Jackpot Effect

There is one more psychological factor worth naming directly, because understanding it may help you recognize it in yourself or someone you know. Most people who fall for this scheme are not naive. Many of them have a moment where they think: this sounds too good to be true.

What overrides that instinct is the magnitude of what is being promised. Lawful permanent residence — a green card — is, for someone who has spent years in fear of deportation, genuinely life-changing. The prospect of resolving everything with a single filing strategy is the immigration equivalent of a lottery jackpot. And when the stakes are that high, the part of the brain that says “if it sounds too good to be true, it probably is” gets overridden by the part that says “but what if it really works this time.”

The operators of these schemes understand this dynamic. They are skilled at making the hope feel more real than the doubt. If you find yourself in this position, the most important thing you can do is get an honest second opinion from a licensed immigration attorney who has no financial stake in whether you file.

Self-diagnostic decision tree for the EB-2 NIW plus stacked I-539 scam: if you are a skilled tradesperson the NIW likely does not apply; if you have a year or more of unlawful presence, stacked I-539 extensions cannot bridge it — warning signs and what to do

Why the EB-2 NIW Does Not Work for Skilled Tradespeople

The EB-2 National Interest Waiver is a legitimate immigration category. Physicians who commit to practicing in underserved areas use it. Researchers whose work advances U.S. science and technology use it. Certain STEM professionals and people with advanced degrees whose work has clear national-scope significance can make a genuine case under it. The legal standard, established in the precedent decision Matter of Dhanasar (26 I&N Dec. 884, AAO 2016), requires satisfying three prongs:

  1. Substantial merit and national importance: The proposed endeavor has both genuine value and impact at a national, not just local, scale.
  2. Well-positioned to advance the endeavor: The applicant has the credentials, track record, and support to actually move the work forward.
  3. Beneficial to waive the job offer requirement: On balance, the national interest is better served by letting this person self-petition rather than requiring an employer sponsor.

Before you even reach the three-prong test, you must qualify for the EB-2 category itself. EB-2 requires either a U.S. advanced degree (or foreign equivalent), or exceptional ability in the sciences, arts, or business. Skilled trades — however valuable, however well-executed — are generally not EB-2 occupations. They are EB-3 occupations, which require employer sponsorship and labor certification. The decades of experience that makes a master plumber or a senior aircraft technician excellent at their work does not substitute for an advanced degree or documented exceptional ability in the EB-2 sense.

We have spoken directly with individuals who were told by consulting operations that their trade experience qualified them for the EB-2 NIW. In one case, the consulting firm called our office to tell us we were wrong. Their argument was essentially that years of skill constitute exceptional ability. The regulations do not support this position, and USCIS adjudicators do not approve petitions on this basis.

Why the Stacked I-539 Extensions Cannot Bridge a Multi-Year Overstay

Even setting aside the EB-2 NIW component, the stacked I-539 strategy fails on its own terms. Our guide to untimely extensions and changes of nonimmigrant status explains in full the narrow circumstances under which USCIS will consider an extension filed after status has expired. The short version: USCIS applies a four-part test, and one of those parts is an absolute bar.

The fourth element requires that the applicant has “not otherwise violated the terms and conditions of the originally authorized admission.” Under 8 CFR 214.1(c)(4), any unauthorized employment is a violation of nonimmigrant status. This element is not weighed against other factors — it is a disqualifier. If you worked without authorization, the untimely extension cannot be approved regardless of how compelling the other circumstances are.

Now apply this to someone who has been in the United States for five or ten years beyond their authorized stay. The consulting firm’s scheme requires USCIS to believe that this person sustained themselves for years without working. The practical implausibility of that claim is not lost on USCIS adjudicators. How does a person survive for a decade in the United States on the generosity of friends and family, with no employment whatsoever? Even an applicant who sincerely states they did not work will face a credibility problem that USCIS adjudicators are trained to identify.

The scheme does not address this problem because it cannot. There is no legal argument that resolves it. Filing twenty I-539 packets does not make the four-part test easier to satisfy — it multiplies the number of applications that are going to be denied, and each denial carries consequences in the current enforcement environment.

The Fee Exposure

Consider the financial dimensions of this scheme: twenty I-539 packets at $470 per filing (paper filing fee) equals $9,400 in government fees alone, before any consulting fees. Add the EB-2 NIW I-140 filing fee ($700 for most filers) and the consulting charges, and the total easily reaches $15,000 to $20,000. This money is gone regardless of outcome. USCIS does not refund filing fees on denied applications.

How to Recognize This Scheme

Several features consistently appear in these operations. If you recognize any of them in your own situation, stop and consult a licensed immigration attorney before filing anything further:

  • You are doing the filing yourself. A legitimate immigration attorney files on your behalf. If you have been given a stack of pre-prepared applications and told to mail them yourself and pay the fees directly, you do not have legal representation — you have paid for document preparation.
  • The firm is not a law firm. Look carefully at the business. Is it described as a consulting firm, an immigration services company, or an advisory firm? Non-attorneys cannot practice immigration law, cannot represent you before USCIS, and cannot appear on your behalf in immigration court.
  • The “attorney” is distant and uninvolved. Some of these operations have a nominal attorney relationship with a lawyer in another state who technically signs the filings but has no meaningful involvement in your case. You should have direct access to and communication with the attorney responsible for your filings.
  • The strategy promises to fix everything at once. Legitimate immigration counsel identifies the best available path for your specific circumstances, explains its risks honestly, and tells you when a path is not viable. A strategy that promises to resolve years of unlawful presence AND deliver a green card through a single scheme warrants serious scrutiny.
  • The price is high and payable upfront. Consulting fees in the range of $10,000 to $15,000, collected before filing, with no clear attorney-client agreement and no attorney oversight, are a warning sign.

The Consequences Are Serious and Getting More Serious

Until recently, a denied I-539 primarily meant the loss of the filing fee and a negative entry in the applicant’s immigration history. That is no longer the full picture. Under a February 2025 USCIS policy memorandum, USCIS significantly expanded its use of Notices to Appear (NTAs) — the charging document that begins removal proceedings in immigration court.

The February 2025 memo removes previous carve-outs and gives USCIS broader discretion to issue an NTA when a benefit application is denied and the applicant has no lawful status. In the months since the memo took effect, USCIS has issued NTAs to more than 26,700 individuals following application denials. This is not a theoretical risk — it is current USCIS practice.

The scenario we are describing — someone who has been in the United States for years without status, who files twenty I-539 applications that are denied — is precisely the profile that generates NTA referrals under this policy. The applicant who was trying to fix their situation may end up in immigration court with an order of removal that they would never have faced if they had not filed at all. We are currently representing clients who are in exactly this situation — brought into immigration court following denied applications filed by non-attorney consulting operations.

What to Do If You Are in This Situation Right Now

If you recognize this scheme and you have already filed some or all of the I-539 packets, the most important thing you can do is act before USCIS issues a decision. Under 8 CFR 103.2(b)(6), an applicant has the right to withdraw a pending benefit application at any time before a final decision is issued. A withdrawn application cannot be denied. A withdrawn application does not generate an NTA.

Withdrawal must be in writing and must reference your full name, date of birth, application type (Form I-539), and receipt number for each pending application. No reason for withdrawal is required. The withdrawal becomes effective when USCIS receives it. Even if you have received a Notice of Intent to Deny (NOID) on any of the applications and did not respond, you retain the right to withdraw as long as a final decision has not been issued.

Do not withdraw without first consulting a licensed immigration attorney about your specific situation. Withdrawal is almost certainly the right move in these cases, but your attorney should review the current status of each application, confirm that no final decisions have been issued, and prepare the withdrawal letters correctly. Moving quickly matters — once USCIS issues a denial, the withdrawal right is gone and the denial becomes part of your record.

If removal proceedings have already been initiated, you need immigration court representation immediately. The earlier you retain counsel, the more options you have. In some cases the right move is to withdraw a pending USCIS application before it triggers an NTA.

The NIW scheme is one face of immigration fraud; the fake job offer is another — here is how the visa-fee job scam works.

The NIW scam is one version of a broader trap; the single rule that exposes all of them is who is actually supposed to pay for a work visa.

How We Can Help

We are an immigration law firm, not a consulting service. When you retain us, a licensed attorney is responsible for your case, communicates with you directly, and appears on your behalf before USCIS and, if necessary, in immigration court. We have experience untangling the consequences of non-attorney immigration schemes, including pending application withdrawal, status analysis, and removal defense.

If you are a skilled tradesperson who was told you qualify for an EB-2 NIW, we can give you an honest assessment of what category actually fits your circumstances and what a realistic path to lawful status looks like. If you are currently in the scheme described in this article with applications pending, contact us before anything is decided.

We serve clients in Montana, North Dakota, Wyoming, and across the Rocky Mountain West. Contact us for a consultation.