The immigration landscape for U.S. employers has shifted dramatically. The past six months alone have produced escalating enforcement activity, sweeping proposed changes to temporary visa categories, and reshaped adjudication standards — all while active litigation continues to alter the legal picture in real time. Below are five critical developments and recommended action items for each.
1. SURGE IN GOVERNMENT INVESTIGATIONS
Employer-facing immigration enforcement has reached levels not seen in recent memory. ICE’s rate of Notices of Inspection (NOIs) for I-9 audits has increased significantly, and DHS has broadly expanded the types of I-9 violations that can result in immediate fines.
The Department of Labor has suspended PERM labor certification processing for several major employers while also launching “Project Firewall,” which gives the Secretary of Labor broad discretion to target employers for H-1B compliance investigations.
The State Department’s Fraud Unit has also greatly expanded investigations of U.S. employers involving visa fraud at U.S. consulates.
What Employers Should Do:
- Conduct audits of I-9s (including a review of audit-trail sufficiency for electronic platforms), PERM audit files, and H-1B public access files.
- Review PERM recruitment methodology and strategy to ensure compliance with current enforcement trends.
- Establish a protocol for responding to government site visits or subpoenas.
2. PROPOSED CHANGES TO THE H-1B PROGRAM
The H-1B program faces its most significant restructuring in decades. On August 25, 2026, DHS proposed an additional $103,265 fee for cap-subject H-1B petitions — on top of the existing $100,000 Presidential Proclamation fee (currently subject to litigation; see Section 5 below).
In October 2026, DHS also proposed a regulation that would eliminate the 60-day grace period for H-1B (and other) workers whose employment is terminated. If finalized, the rule would effectively require departure from the country immediately upon termination, without an opportunity to seek new employment or change immigration status.
What Employers Should Do:
- Begin assembling your H-1B cap list earlier than usual (i.e., now) and assess wage-level classifications in light of the weighted lottery.
- Model the financial impact of potential cumulative fees on your H-1B budget and determine company policy should the fees take effect this cap season despite potential litigation.
3. PROPOSED CHANGES TO THE STUDENT VISA/OPT PROGRAM
On October 7, 2026, DHS proposed a regulation that would require universities to pay $70,000 the first time an F-1 student is recommended for Optional Practical Training (OPT) and $30,000 for each subsequent OPT recommendation — with costs potentially passed through to students or employers. A student who uses pre-completion OPT, post-completion OPT, and a STEM OPT extension could generate $130,000 in total fees. DHS characterized the proposal as an anti-fraud measure, but litigation is widely anticipated. Courts have already held that DHS cannot impose fees functioning as taxes without congressional authorization — the same theory used to invalidate the $100,000 H-1B fee. The comment period closes on December 7, 2026, and publication of the final rule is expected to follow in subsequent months.
What Employers Should Do:
- Review your student-visa population to better understand your risk profile should the fees become final.
4. HEIGHTENED USCIS SCRUTINY
The adjudicatory environment at USCIS has become significantly more challenging over the past fiscal year, with denial rates increasing across the board. Effective August 5, 2026, USCIS authorized adjudicators to deny petitions without issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) if initial evidence is deemed insufficient — a meaningful departure from prior practice. Adjudicators may also now set response deadlines as short as 30 days for certain filing types, replacing the prior standard of up to 12 weeks.
A May 2026 policy memo further recharacterized adjustment of status as an “extraordinary form of relief,” signaling a more restrictive discretionary approach across the board.
What Employers Should Do:
- Prepare visa extension and permanent residence filings as early as possible to allow time to respond to requests for evidence or overcome denials.
- Build internal workflows capable of responding to RFEs within 30 days.
- Factor longer processing timelines and higher denial rates into all workforce planning.
- Review adjustment-of-status strategies with particular attention to filings for temporary-intent visa holders.
5. THE LITIGATION LANDSCAPE
The volume and pace of immigration litigation is itself a compliance challenge. Key matters to monitor:
- $100,000 H-1B Fee: A Massachusetts federal court vacated the fee on June 8, 2026. The First Circuit denied the government’s motion for a stay on July 24, 2026, and the fee therefore remains unenforceable pending appeal. The outcome of this litigation is likely to affect the separate $103,265 fee proposed by DHS.
- Adjustment of Status Memo: Legal challenges have been filed against PM-602-0199, arguing the policy guidance constitutes a substantive rule change requiring notice-and-comment rulemaking under the APA.
- Student Visa Regulation: Currently blocked by a September 2026 district court decision granting nationwide preliminary relief. DHS has appealed to the First Circuit Court of Appeals.
- Proposed $103,265 and $70,000 Fees: If finalized, both fees are expected to face legal challenges.
What Employers Should Do:
- Develop a communication strategy for high-stakes immigration updates (e.g., town halls, targeted email communications) to reduce employee anxiety, reaffirm the company’s awareness and strategic approach, and emphasize that most changes are not yet final and remain subject to litigation.
Our team is available to assist your company as it navigates this changing U.S. immigration landscape.
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