French Insider Podcast Ep. 41
Navigate the Maze - Hot Topics in U.S. Immigration with Greg Berk and Christine Doyle of Sheppard Mullin
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Listen to the podcast released October 21, 2025 here: https://www.sheppard.com/multimedia-654
In this episode of French Insider, Sheppard Mullin immigration attorneys Greg Berk and Christine Doyle join host Inès Briand to discuss recent developments in U.S. immigration law and their impact on both individuals and employers.
About Greg Berk
Greg Berk is a partner in Sheppard Mullin’s Labor and Employment Practice Group and leads the firm’s immigration practice from its Orange County, California office. He is certified as a Specialist in Immigration and Nationality Law by the State Bar of California Board of Legal Specialization and is the author of Immigration Checklists and Practice Pointers – A Desk Reference, published by the American Bar Association for general counsel and HR managers.
With more than 25 years of experience, Greg advises clients on all aspects of U.S. immigration law. He helps employers across the globe hire and retain foreign executives and other highly skilled professionals critical to their U.S. operations, and also represents investors in E-2, L-1, and EB-5 matters. He also counsels clients on I-9 compliance and a wide range of other immigration-related regulatory issues.
About Christine L. Doyle
Christine L. Doyle is Special Counsel in the Labor and Employment Practice Group in the firm’s Orange County office. She focuses her practice on immigration law, advising employers and their employees on a wide range of U.S. and global immigration matters. Christine has extensive experience managing employment-based immigrant and nonimmigrant visa petitions and regularly counsels clients on I-9 compliance and other aspects of workforce mobility and immigration strategy.
About Inès Briand
Inès Briand is an associate in Sheppard Mullin’s Corporate Practice Group and French Desk Team in the firm’s Brussels office, where her practice primarily focuses on domestic and cross-border mergers and acquisition transactions (with special emphasis on operations involving French companies). She also has significant experience in general corporate matters and compliance for foreign companies settled in the United States.
As a member of the firm’s French Desk, Inès has advised companies and private equity funds in both the United States and Europe on mergers, acquisitions, commercial contracts and general corporate matters, including expansion of French companies in the United States.
Transcript:
Inès Briand:
Hello and welcome to today's episode of Sheppard Mullin's French Insider Podcast. I am Inès Briand, an associate in our corporate team in New York, and today I'm joined by two robust members of our immigration team, Christine Doyle and Greg Burke. Hi, Greg. Hi, Christine. Nice to have you today. How are you doing?
Greg Berk:
Good, thank you.
Christine Doyle:
Hey, Inès, we're good.
Ines Briand:
Thanks so much for joining us. Let's jump right in. Christine, Greg, we saw that recently the White House issued a new proclamation regarding H-1B and that triggered a lot of anxiety. Can you tell us a bit more about this?
Christine Doyle:
Sure. On September 19, 2025, it was a Friday, the White House issued a proclamation called Restriction on Entry of Certain Nonimmigrant Workers and this caused a lot of chaos over the weekend. It was supposed to start on Sunday the 21st, and obviously that's not a lot of time for people to have notice, and there were a lot of people overseas who were confused about what it meant.
So the proclamation was targeted at companies in the IT sector who had been laying off workers and yet still using the H-1B program to bring people into the US on H-1B visas, and the proclamation said that they were going to be charging an $100,000 fee per worker who was using the H-1B program. It said there were going to be some carve-outs for exceptions, but it didn't really explain who those would be for or how you would apply for them. And then also, despite saying that there was this a hundred thousand dollars fee, it didn't specifically say which H-1Bs this would apply to or who would pay the fee or how to pay the fee for the $100,000.
So just overall for I think practitioners as well as people on H-1B visas, it was very confusing just because the language was so ambiguous. And at the same time it said it was starting on Sunday, like, 2 days after it was issued, and no one really knew what to make of it.
Over that weekend, different government agencies had released some statements but they were also pretty vague and there was still no instructions about how to pay the fee. And now we're a couple of weeks past the 21st when we're taping this and there still are no instructions about who specifically the fee applies to or how to pay the fee. That's not included in the fee schedule for USCIS filings to date. And we haven't seen Department of State saying you could pay it at the consulates if you apply for a visa yet. So we're still unsure of how it's going to work out.
There was a tweet over that weekend by Karoline Leavitt, the White House Press secretary, where she had said that this proclamation was going to apply to the H-1B lottery cases, which the H-1B lotteries would be next run in March 2026, and that the fee would be a one-time fee and it would not be an annual fee. So that is a little bit helpful, but still a little bit still pretty unclear how that's going to be implemented.
So everyone was freaking out that weekend. However, it seems like from our clients and from other reports, everyone was able to get back into the US without paying the fee and we have continued to file H-1B cases extensions and changes of status for people in the US and we have not been paying the fee because we don't know how to pay the fee at this time, and the cases have been getting approved. Basically, we're waiting for more guidance on the specifics of it still.
And then last week on October 3, there was a lawsuit filed against the proclamation, and so even the lawsuit says, because of the specifics of how this is going to be enforced, it's hard to file a lawsuit of what's actually happening. So I guess we will know more in the next couple of weeks about how the proclamation is going to be applied and if it's going to apply to the lottery in March. So obviously we have time from now until March, but it's just very confusing and has been a very stressful couple of weeks for people.
Inès Briand:
And so, so far it looks like it's only going to apply for the petition filed after the March 2026 lottery, but it won't be retroactive for the petitions that were approved before, correct?
Christine Doyle:
It seems like that. Despite the date saying that the proclamation was starting on the 21st of September, at this point we don't see how they could apply it until they give us more specifics. And then even with the lottery, that's a tough way to apply it because everyone goes into the lottery and you don't know if you're going to be chosen or not. So it's going to be hard for employers to know if they actually have the $100,000 obligation or not until they hear back on what's happened with the lottery. And obviously the big criticism of this fee is it's such a huge fee that only bigger companies, probably the ones that were laying off a lot of times, are going to be the only companies who can actually pay the fee and it disproportionately hurts smaller employers and employers who are trying to use the H-1B program for university teachers, doctors, nurses, et cetera. So yeah, we'll see.
Inès Briand:
About the wage preference, we've heard that depending on the level at which you file you would have different chances. Greg, can you tell us a bit more about it?
Greg Berk:
Sure. Concurrently with the proclamation, the White House announced an initiative to change the way the lotteries are selected, and like Christine said, kind of the gravitas was they were concerned about US layoffs in the IT industry and potential abuses in the H-1B program and they said, "Look, let's give preference to companies that are willing to pay a level 4 wage." So if you have a financial analyst working for the company in New York, and I don't have the wages in front of me, but suppose, hypothetically, level 4 was $220,000 and the employer was willing to pay it, then that foreign national will be put into the lottery four times by the government, and if the company's willing to pay the level 3 wage, they'll put them through three times. So the idea is that level four wages are going to prevail in terms of selection.
And like Christine mentioned, the lawsuit was filed. It remains to be seen how the courts will view this, whether it's within presidential powers or whether it exceeds presidential authority. That's on the lottery itself.
In the proclamation, it also asked DOL to take a stronger enforcement posture and to audit companies more in terms of H-1B wages. Right now it's an honor system. The employer is supposed to pay the foreign national no less than what they're paying US workers doing the same job, and they also have to pay the prevailing wage that the Department of Labor says. So if the prevailing wage is $120,000 but all the Americans are making $140,000, then the employer is supposed to pay $140,000. And DOL is now being asked to step up their enforcement.
Last item that was announced on September 19th, it was quite a day, it was a busy day, was the gold card. The gold card had been announced a few months ago at $5 million. It's now been changed to $1 million and that's a green card, of course, permanent residency. Or if a company wants to pay for my green card, then the company can put in $2 million and I will get a green card. And the money goes to the US Treasury. It's a one-way ticket. You don't get the money back. It's a gift to the US government, so to speak. And source of funds will still need to be looked at, background checks, vetting. We don't have the regulations or anything like that yet and it remains to be seen whether or not it would be concurrent with the work at the same time as the EB-5 program or whether it would attempt to take it over. Congress created the EB-5 program, so my own guess is it's still going to be around. And there you go.
Inès Briand:
And so this means that any individual that wants to pay $1 million would be able to get a green card, correct?
Greg Berk:
Pretty much. And a lot of this is subject to regulation and court review. Because right now the administration is saying that if you could afford to buy a green card for $1 million, you are extraordinary or the work you're doing is in the national interest by giving that money. And so they're talking about using visa numbers from extraordinary ability and National Interest Waiver, which is creative, so it remains to be seen how that will play out.
Inès Briand:
Well, we have a lot to see I guess, and a lot of updates to be provided later on.
Greg Berk:
Precisely.
Inès Briand:
What are some of the trends we are seeing right now in the US regarding workplace enforcement for employers?
Greg Berk:
We've seen the federal government this year take a keen interest in trying to detain and remove individuals who are not authorized to be in the United States, and many of you have seen this on the nightly news and so on, some of it is a bit dramatic, but basically how it might affect your work site is an officer might come from ICE, Immigration Customs and Enforcement, with a civil warrant, which is a piece of paper that basically says that, "We have the right and we have probable cause that your employee Johnny is subject to removal and we're here to detain him."
And so Officer Jones from ICE is going to come into your lobby and talk to the receptionist and say, "I have a civil warrant to detain Johnny," and the receptionist, there should be a protocol where the receptionist knows that anytime any law enforcement comes into the building, the receptionist calls the general manager or HR and says, "Hey, we have law enforcement in the lobby." And the goal is to keep law enforcement in the lobby, particularly ICE. "They have a job to do, but we don't want them in the back shop because we don't want them talking to 50 employees and so on. They're there just for Johnny, so we don't want to expand that."
So basically the reception can say, "Officer Jones, we're going to do everything we can to cooperate. Please take a seat. Would you like some coffee? I will call my manager." The manager can then go find Johnny in the back shop and say, "Look, ICE is here. They want to talk to you." Now, hopefully Johnny cooperates and goes to the front and can talk to them outside the building, et cetera. If Johnny runs out the back of the building, don't chase them. That's not something that the employer is expected to do and so on. That's the most likely scenario, is a civil administrative warrant not signed by a judge.
Now, in rare instances, and you guys will probably never see this, a judge will sign a criminal warrant, and that's sort of like a raid. That's sort of like the six o'clock news thing. And if they're coming in with a judicial warrant, you will know it in a heartbeat because, well, they're probably going to be all dressed up in their uniform and then they're going to say, "We have a warrant signed by a judge. Everybody get out of our way." It's very obvious. And so at that point, they really don't care what the receptionist has to say or anything like that. That's extremely rare. There are also situations, and I'll hand it off to Christine, where ICE may come to your facility for an I-9 audit.
Christine Doyle:
Yes. So if ICE feels like they're not getting the compliance they wanted from coming in and trying to serve a civil warrant or they can just do it on their own based on their records or a suspicion, they can do an I-9 audit on the company. And so your I-9 records are the records the employer has to keep when they hire someone that shows that their employee is legally authorized to work in the US. And so I-9s are a deceptively simple form and it looks like they would be really easy to fill out, there's complex retention requirements, or complicated retention requirements, and so that's something that employers should be looking out for and something they can always work on now to try to get an order.
If you do get audited, you can get a fine of up to $2,800 per violation per employee. It might make sense in this time to look into doing an audit of your I-9s, and we would recommend that you would probably confer with counsel to get some background information on what you should be looking for and the best way to audit your I-9 records. Because if you are audited, you usually have to produce the records in a couple of days, which can be very stressful, obviously. Usually they'll just ask for a list of your current employees' I-9s, but definitely sometimes that can be hard to get together. And so if you have counsel, sometimes you can get that pushed back, and hopefully your counsel could interface with ICE to try to get the best outcome for the company.
Inès Briand:
Okay, great. Well, thanks so much for providing to the current topic in immigration. Now, moving on to the next topic. For people who wants to come to the US on business, what should they know and what has changed recently?
Christine Doyle:
So when you're coming in for work or meetings, you're going to go through the airport and you're going to talk to the CBP officer at the immigration booth. And so for a lot of countries you can get ESTA, which is visa waiver and you don't have a visa in your passport at all, though some countries do have to actually apply for a B visa at the consulate.
So then when you come to the airport and you're trying to talk to the CBP officer about whether you're going to be working or doing business, it is a good idea to try to not use the word work if you're truly here for business meetings because it gives them the wrong impression that you're here to work without a work visa. And so there are very specific work visas that you have to apply through USCIS most of the time or sometimes through the consulate abroad and they're not considered the same as a business visa which you would have for business meetings.
I guess we would just stress that if you're coming for business meetings, you should be able to explain that there are actually meetings or conference that you're going to be attending while you're here and that it's for a short duration that would make sense for business meetings. Greg, maybe you can talk a little bit about searches, cell phones and laptops, that we're currently seeing by CBP.
Greg Berk:
Sure. As many of you know when you arrive at a port of entry, there are no constitutional rights, but we say Fourth Amendment rights, protections against search and seizure, whether you're an American or a permanent resident or here on a visa or ESTA, none of us have those rights at the airport, and CBP, Customs and Border Protection, has the authority, if they want to, to search your laptop or cell phone.
Now, how would that work? You're flying out of Charles de Gaulle, you're on Air France, and the minute the plane is wheels up, the airline is transmitting an electronic manifest of all the passenger names and information, passport numbers, date of birth, and so on, to CBP. CBP has automated artificial intelligence software that is designed during that flight. The software is examining each passenger in terms of running them through FBI databases, criminal databases, national security databases, Interpol, Facebook, LinkedIn, Instagram, and you name it, and it is pulling together all this data and then the machine is deciding whether or not Charlie should be put into secondary inspection.
Now, there's a lot of reasons why Charlie getting off the plane for a business trip might get referred to secondary inspection, but the artificial intelligence is at work there, and depending on the facts, they may decide that they also want to search your phone or your laptop. Maybe they've noticed in the system that you traveled recently to Cuba or China and you're involved in sensitive technology or maybe on Facebook you posted that you are getting married to Sheila in Chicago on Sunday and you're here on ESTA and the software is saying, "Well, wait a second, that's an intending immigrant," and you say, "No, no, no, I'm not an intending immigrant." They'll say, "Well, let's check your cell phone text messages and your laptop."
They're going to ask you for the password. You can say no, but then they will keep your device and they may not admit you. If you're a US citizen or permanent resident, they have to admit you, but they could still confiscate your devices. My recommendation is to give them your password. They have strict protocols. They are not supposed to be going into your company server or anything on the cloud, just whatever's locally on the phone or the laptop, and there are strict protocols about what they can do with that data. They have to safeguard it, they eventually have to destroy it, and so on.
Now, if you're getting pulled into secondary more frequently, we can assist with what's called CBP redress because maybe they got the wrong Charlie, same date of birth or something, they got the wrong name, there's something in the system that needs to be fixed and we can ask CBP to do it. They may do it, they may not, but there is a process to at least try.
Inès Briand:
And now moving on to work visa, what are the current trends you're seeing to date in the United States?
Christine Doyle:
It's good to start with the fact that most people, when they apply for a visa, they apply for the visa at the consulate and it's going to be good for a number of years. However, the consulate will issue the visa generally for the full amount it can be good for, and that does not mean that the passport is actually going to be good for that entire period that the visa is issued for. And so it's always very good to be checking your passport expiration date and just be aware that when you travel into the US, even if you have a visa valid for 3 years, if your passport expires at 2 years, CBP can short you to that 2-year passport expiration date on your I-94 card.
And then so your I-94 card is the electronic record that CBP creates when you're going through the immigration booth at the airport. They're putting the information into their computer and they're not actually giving you anything in return to show you what it says. It's very wise to log on to the CBP I-94 website every time you come into the US and just make sure that it's correct, because sometimes it's not, and if that's the case, you can get it corrected, a lot of times by email, so that's usually the easiest fix. But if it's an issue with your passport was expiring in 2 years, they're likely not going to fix that because they don't consider it an error to start with.
So everyone should just be aware of that because we have been seeing that lately. And a lot of times the government is not willing to really go the extra mile to try to fix those. If people overstay their I-94, even though they could still have a valid visa. But it's really the I-94 that governs your stay in the US, so you just want to make sure you're on top of that.
Additional issues we're seeing is just more vetting at the consulates with, really, all types of visas. There was a change at a lot of the European and African consulates, I think it was last year now, where they got a new contractor who is doing their appointment system, so you would have to use the appointment every time you logged in and tried to get a visa or go to the consulate. And so that was causing a lot of delays and it was terrible. You couldn't get in touch with anyone to sort things out, in France in particular, but that seems to have worked itself out. So that's going a lot more smoothly, which is good.
However, starting September 2, they are, for the most part, getting rid of interview waiver, which is something that they had rolled out during COVID where they would waive, I guess, certain requirements for when you would need to go in and actually interview at the consulate for visa stamping. And so one of the best examples I think is for people on H-1B work visas, if you were getting an extension of your H-1B, you might be able to just send in your documents and not do an interview at all, whereas now that seems like they're going to be stopping that as of September of this year.
Another thing I would bring up for increased vetting is, for F-1 and J-1 visas, we're seeing people who go to the consulate, they do their interview, but after the interview the consulate tells them their visa is not approved and gives them a paper and says, "We need to do social media vetting at this time and you need to make all your social media public so we can search it." And so they leave the consulate and the officers, usually in the next week or so, go in and check all their social media to make sure there isn't anything controversial or anti-American, and then at that point they will issue the visa. So that's creating some delays at the consulate.
And then, finally, there are a lot of RFEs this year, so we're definitely seeing an uptick in the number of requests for additional evidence from USCIS. So just be ready for that. On our end, we're trying to make the best cases possible for people so we don't get RFEs because, really, no one wants those, including your immigration attorney. It's stressful. You don't want to be in a position where you're trying to scramble to get documents in usually the 3 months that you have and all of these type of things. So just be aware that that's a trend.
Inès Briand:
Okay, great. Thank you very much for providing the breakdown. This was very interesting and now we know what to expect. So now onto the next topic. If a person was interested in an investment-based visa or green card, what would be the options?
Christine Doyle:
One great option would be the E-2 visa, which is a visa that's issued at the US consulate abroad, which usually is a good thing because USCIS can be difficult on cases. So we do usually have good luck, at least at Sheppard Mullin, with E-2s. So when you're looking at an E-2 visa, there needs to be a treaty between the country of a person's nationality and the US. I mean, most countries in Europe have this treaty. If you had any questions, you can always look it up on the Department of State website if there's an E-2 treaty with your country.
But once you have the treaty, you're basically able to show that you invested in a US business and are going to be able to run a successful business in the US or make enough profit that you would be able to hire US workers. And so that's really the point of the E-2 visa. The E-2 visa, it's not a passive investment visa along the lines of investing in real estate, it's really a visa to start a business, invest money, and generate jobs. So it can be applied to a wide range of businesses. It can be small businesses, it can be subsidiary offices of large businesses. So there's really a lot of options, you just need to show the significant investment to get the business off the ground and then the nationality of either the company's owners, and that could be one person or a lot of people. Sometimes that can be challenging with bigger companies.
But the E-2 visa, it's a good visa. It's long-term, it's usually 4 to 5 years, France, it's for 3 years. And there's a lot of discretion. If you're creating a business for what you want to do, you can do what you want to do as long as you can show the investment and that you're making progress with your business. And then Greg will talk a little bit about EB-5, because that's very different. The same but different.
Greg Berk:
Congress didn't create a lot of visas, believe it or not, but the E-2 that Christine was talking about is job creation, and that's on the non-immigrant side. And then on the immigrant green card side, we have EB-5, and both of these are all about creating jobs and helping the US economy. And Congress created the EB-5 category in 1990, 35 years ago. It's still around, they renew it every few years, and I want to give you some details on that. But first, many of you saw the White House announce this gold card a few months ago, and that will require an act of Congress, and if it's passed, the gold card would allow you to write a check for $5 million to the US Treasury. You would not have to show that you're creating any jobs or investing in a particular business, you would just write a check for 5 million, and as long as you have a good background, what we call admissible to the United States, you'll get a green card and you won't get your money back.
But that is not on the books. What has been on the books for 35 years and still is what's called EB-5, Employment-Based Fifth Preference, and Under Employment-Based Fifth Preference, and the rules were changed in 2022 to actually make it better, you, yourself, or maybe you have a child studying in the US graduating college and they say, "Hey, mom or dad, I want to stay in the United States. I've got this optional practical training for a year," but then, like Christine talked about, you have the H-1B lottery, "There's a good chance I won't get in. Mom and dad, I want to stay. I have a boyfriend, but I'm not ready to get married yet," if you can afford it, EB-5 may be the way to go.
And you could invest $800,000 in a rural area along with about $60,000 administrative fee, and you're typically investing in hotel projects or large residential housing projects, could be a large assisted-living senior center in Palm Springs, could be some large data center near the Colorado River, who knows. A lot of different options. And you have to show your source of funds and you have to keep your money there for about 5 years.
The nice thing about EB-5 is, unlike E-2 that Christine talked about, with EB-5, you don't have to hire people, you don't have to run the business, it's enough that you just review the reports every quarter. And the EB-5 Regional Center hires an economist to prove that each of your $800,000 for each of the investors that pool their money together as limited partners, each of them are creating, indirectly in the economy, 10 jobs. Because if you build a hotel, now you've got waiters and waitresses and you have cooks, right? Those are direct jobs, but now you've got construction jobs and now the waiter and waitress has to go see the dentist, and then they have children, and then you need schoolteachers. So there's this whole macroeconomic job creation as a result of EB-5. And it's a really good thing, like I said, if you're interested or you have a family member that's interested here, long-term.
Now, we do not recommend investments at Sheppard Mullin, but we can certainly refer you to an experienced and licensed financial broker that carefully evaluates these projects based on their track record and their success rate and the financials of the particular project you're looking at, the econometrics, the job creation, business plan, and so on.
Inès Briand:
Great. Thank you very much for this breakdown of the different visas and noted on the different choices we have. Do you have any last tips for our listeners or anything you'd like to highlight that wasn't mentioned today?
Christine Doyle:
I would just say that there are visa options for people, though it can be difficult to navigate. Definitely we are available to help people try to figure out what's the best fit for them and how to make it happen, so if you ever need any assistance, we're here at Sheppard Mullin.
Greg Berk:
I second that. And immigration is far more complex than it appears. Everybody has a friend that, "Oh, I did this myself. I did my naturalization myself. I did this myself." Things are getting very, very complicated, and there's a reason that lawyers specialize in this area. The government is getting much more intense and it's wise to consult, like Christine said. And also, our best work product is very collaborative. When we prepare a visa, if the client is very, very involved with document production and helping us tell the story of why the government should approve this visa, that's where the best work is done collaboratively, and we look forward to working with you all.
Inès Briand:
Thank you very much for all your advice. It was a pleasure having you on the podcast today. And listeners, we look forward to having you on our next episode. Have a good day.
Ines Briand:
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