Pabian Law Clients and Friends,
We hope that this Year-Round Immigration Quarterly Update finds you well. We are excited to share the Pabian Law Quarterly Update for October 2025, serving as an educational update on government and regulation changes, trends, alerts, and other pertinent information.
As background, Pabian Law has two practice areas – our H-2B Visa Practice for our seasonal hospitality clients and our Year-Round Practice for all hospitality employers where we assist with a myriad of visa and green card application types, including TN visas, O-1 visas, H-1B visas, green card applications (EB-1, EB-2, and EB-3). We also have a team that assists employers with employment verification issues (ex. I-9 and E-Verify questions). In short, we are a full-service immigration law firm for hospitality employers across the United States!
Please read on for information about the following topics:
- Upcoming Pabian Law education
- U.S. Citizenship and Immigration Services issues further clarification about which employers must pay the additional $100,000 H-1B visa fee
- What is an EB-3 PERM green card and is it the right fit for a hospitality organization to sponsor one of their foreign national workers?
- How can employers show their ability to pay the offered wage during the PERM green card process?
- TN Visas for the Hospitality Industry: Frequent issues encountered with the Hotel Manager category
- Can TN visa holders from Mexico re-enter the U.S. for 4 years instead of 3?
- Save the Date for the 2026 Staffing Summit!
Upcoming Pabian Law education
Pabian Law clients, please join us for our upcoming client-only education! We recorded a helpful video to understand all of the offerings available to you. You can access the video HERE. If you have any questions about our education, as well as the dates and links to our next offerings, please let me know.
We also offer great educational opportunities for those that are not currently Pabian Law clients. Registration is open for two such offerings, which are outlined below:
Registration Links:
- December 9th webinar:
- In-Person H-2B Visa Workshops in March
- Register for any or all of the 3 Workshops HERE
U.S. Citizenship and Immigration Services issues further clarification about which employers must pay the additional $100,000 H-1B visa fee
There has finally been some clarification surrounding the September 19, 2025 Presidential Proclamation that added a $100,000 filing fee to H-1B visa petitions.
As a reminder, H-1B visas are not H-2B visas. While the visas have very similar names, they are vastly different and are independent of one another. In other words, the laws and regulations are different and unique for the two visa types.
This week, U.S. Citizenship and Immigration Services (USCIS) clarified that the Proclamation applies only to new H-1B petitions that are approved via consular notification. Consular notification approvals are issued when the foreign national is either outside the U.S. at the time of filing, or is in the U.S. but is found to be ineligible for change of status (for example, when the foreign national did not maintain lawful non-immigrant status at the time of petition filing).
The Proclamation does not apply to any previously issued and currently valid H-1B visas and does not prevent any holder of a current H-1B visa, or any foreign national beneficiary following petition approval, from traveling in and out of the U.S. The Proclamation also does not apply to a petition that is requesting an amendment, change of status, or extension of stay for a foreign national inside the U.S.
USCIS has also clarified that payment must be made via a government website (pay.gov) prior to filing the H-1B visa petition with USCIS. To apply for an exception from paying the $100,000 fee, the H-1B visa petitioner has to show not only that the foreign national’s presence in the U.S. is in the national interest, but also that an American worker is not available to fill the role, and the foreign national does not pose a threat to the security or welfare of the U.S.
This new fee has been challenged in court and we are hopeful that the Proclamation’s days are numbered.
What is an EB-3 green card and is it the right fit for a hospitality organization to sponsor one of their foreign national workers?
Employers who are seeking to retain their H-2B visa or other non-immigrant visa workers for the long term may want to consider the EB-3 green card process (also referred to as the “PERM” green card process). If approved, this application process results in the foreign national receiving U.S. Lawful Permanent Resident status (commonly referred to as a “green card”). Once a person has a green card, they can remain in the U.S. indefinitely, work for any employer, and eventually choose to apply for U.S. citizenship.
The EB-3 green card process is available to individuals from any country; however, citizens of countries such as Mexico or the Philippines often face a longer wait time to be approved for green cards due to country-specific quotas and backlogs.
The green card process requires the employer to meet the following requirements with regards to the job offered:
- Full-time: defined as 35 hours or more per week
- “Permanent”: meaning that the job for which the employer is sponsoring a foreign national for a green card must be year-round and cannot be seasonal
Unless the employer has signed an employment agreement with the employee, the foreign national remains an at-will employee and may be terminated at any time for any legitimate reason. However, the employer must have the intention to employ the worker indefinitely at the time that the petition is filed.
The EB-3 green card application route is the most common path for hospitality employers to sponsor their foreign national workers for Permanent Residency Status. It has less government discretion than other green card routes and all positions qualify (so long as the employer can show that there are no U.S. workers interested and qualified in the role). In fact, with how difficult it has been to sponsor most hospitality workers for year-round visas, such as the H-1B visa, many hospitality employers are turning to the EB-3 green card route when they find a great employee that they want to employ year-round for many years to come.
There are some drawbacks to sponsoring a foreign national for a green card that employers should consider, including:
- Once a foreign national is approved for a green card, they can work for any employer. Therefore, traditional employee retention initiatives are just as important for your green card workers as for others.
- The process takes a very long time (currently 3-5 years). During the majority of that time, the foreign national needs to maintain lawful immigration status through other means (usually the H-2B visa).
- Costs – while this is one of the few immigration avenues where employees can contribute toward the fees, the employer must entirely pay for the first step of the process.
In short, the EB-3 green card process can be a good solution for employers who wish to retain foreign national employees on a year-round basis. We are always happy to discuss the pro’s and con’s of the process and answer any questions that you may have about sponsoring a foreign national worker for this benefit.
How can employers show their ability to pay the offered wage during the PERM green card process?
For most employer-sponsored green card applications, one of the requirements that the employer has to satisfy is that it has the ability to pay the prevailing wage (or offered wage if higher) to the foreign national employee. The prevailing wage is a salary figure determined by the U.S. Department of Labor and is based on factors such as the type of duties performed, whether any managerial duties are performed, the amount of experience required and the geographic location of the job.
Where this can be a trap for sponsoring employers is that the ability to pay requirement does not come into play until the second part of the three-part green card application process. Therefore, if an employer is not careful in understanding this requirement, it can spend much time and expense on the application only to discover later that they may not be able to proceed.
To satisfy this ability to pay requirement, U.S. Citizenship and Immigration Services requires that organizations submit annual reports, federal income tax returns, and/or audited financial statements. If the sponsoring organization employs 100 or more workers, it can also use a letter from its Chief Financial Officer as initial required evidence of ability to pay.
A problematic situation that may arise is where the employer either does not have the documents listed above or is showing a break-even or financial loss on its Tax Returns. This can be a common issue in the private club industry, where so many organizations are non-profits. In these situations, we turn to “secondary evidence” to satisfy the ability to pay application requirement.
The types of documents that can be used as “secondary evidence” are profit and loss statements, bank account records, and personnel records. If the foreign national that is being sponsored is already working for the organization, we may also be able use the foreign national’s paystubs and W-2 Forms.
It is important to understand the ability to pay requirements at the outset of the green card application process to ensure that the sponsoring organization will be able to satisfy this application requirement and have the green card application approved.
TN Visas for the Hospitality Industry: Frequent issues encountered with the Hotel Manager category
As an alternative to the H-2B visa, hospitality organizations may be able to take advantage of TN visas to bring in international workers for year-round roles. TN visas grant work authorization to citizens of Canada or Mexico across 60 specific job categories. Most of these job categories require that the applicant hold a bachelor’s degree (or foreign equivalent) to qualify. Once approved, TN visas are valid for three years, although some workers are being admitted for four years (more on that in the next section of this Quarterly Newsletter).
The TN category most often suitable for the hospitality industry is that of Hotel Manager, which can be used for jobs such as Restaurant Manager, Food Production Manager or Housekeeping Manager.
To be eligible to sponsor a TN visa worker in this category, the employer must be a hotel/lodging property or own a restaurant that is located in a hotel or resort. Restaurants that are not in a hotel or not on resort property will not qualify, and restaurants that are not owned or operated by a hotel company will also not qualify. Non-lodging organizations also do not qualified (such as most clubs).
The position must have managerial duties, and the employee being sponsored must possess one of the following:
- A Bachelor’s degree in Hotel, Restaurant, Hospitality Management field; OR
- 2 year post-secondary degree or certificate in hotel/restaurant management (such as an Associate’s degree or vocation degree) acquired in Canada or Mexico plus three years of experience in hotel/restaurant management.
Positions that have some managerial duties but do not involve management or oversight of other employees may not qualify for a TN visa.
A foreign national’s educational background is critical for them to qualify for a TN visa through the Hotel Manager category. A candidate might possess a great deal of work experience in hotel or restaurant management, but their degree may be unrelated to Hotel or Restaurant Management, which disqualifies them. Alternatively, they may have a certificate in restaurant or hotel management, but it may be from a program that is less than 2 years, or the program may be from a country other than Canada or Mexico. This also would disqualify the candidate.
In summary, TN visas are a great option for hospitality organizations that have guest rooms to bring in managers who are from Canada or Mexico.
Can TN Holders from Mexico re-enter the U.S. for 4 years instead of 3?
Citizens of Mexico must apply for a TN visa at a U.S. Consulate or Embassy in Mexico before they can enter the US in TN status. This is different than Canadian citizens, who – if applying to enter the U.S. – complete the entire application process at a border crossing.
The immigration regulations that govern TN visas specify that the period of employment in TN status is permitted for 3 years and that further 3-year extensions are allowed indefinitely.
Initially, Mexican nationals were being issued TN visas at U.S. consulates and embassies that were only valid for 1 year. Subsequently, the U.S. Department of State allowed these visas to be issued with a 4-year validity period. However, when Mexican nationals enter the U.S. on a TN visa, they are still admitted for only 3 years, since that is the maximum allowed status validity period as per regulations. There is much confusion between the 4-year visa versus the 3-year status validity.
A grey area that is not fully spelled out in the law or regulations is whether the TN visa holder can re-enter the U.S. during the 4th year of visa validity without having to go back to the U.S. Consulate or Embassy for a new TN visa. Since the 4-year TN visa policy is still relatively new, the government has not specifically addressed this question.
A literal reading of the law would mean that when a Mexican TN visa holder enters the U.S. on their TN visa for the first time, that is the beginning of their 3-year period. This would then mean that their status has to be extended before the 3 year period ends, even though the TN visa in their passport is valid for an additional 4th year. However, some clients have reported that their employees in TN visa status from Mexico are able to re-enter the U.S. during the 4th year of their TN visa validity, even though they have used up the initial 3 years of TN visa status. Some individuals have even been able to renew their driver’s licenses during the 4th year.
As a best practice, and in order to be fully compliant, our advice is that you mark your I-9 records for Mexican TN visa holders as expiring 3 years from their initial TN visa entry. We recommend setting the reminder to extend the TN status within 6 months of the 3-year expiration date (by either having the employee leave the U.S. to apply for a new visa or to file an application with U.S. Citizenship and Immigration Services (USCIS) to extend their stay in the U.S.). This will ensure that you are following the law and that you avoid potential penalties since the 4th year validity is a grey area.
Importantly, if you are employing a TN visa holder that is in the U.S. in their 4th year of TN visa status, you do not have to terminate them. Instead, if they have a valid I-94 record, they have documentation to evidence employment authorization. We suggest, though, that you work on extending their stay for a new 3 year period right away.
Save the Date for the 2026 Staffing Summit!
Conclusion
We hope that you enjoyed this Year-Round Quarterly Update. Please do not hesitate to contact us with any questions about the topics listed above or any other immigration-related topics.
Warm regards,
Keith Pabian and your friends at Pabian Law