Presidential Actions Target the H-1B Program
In September 2026, the White House issued an Executive Order (EO) and a proclamation affecting the H-1B program.
The presidential proclamation extends a previous 2025 proclamation applying a $100,000 fee for H-1B specialty occupation workers who are outside the US. It is unclear how this fee will be applied given a court decision which found the H-1B fee unlawful (the government was unsuccessful in its appeal of the decision).
The EO instructs Department of State (DOS), Department of Labor (DOL), and Department of Homeland Security (DHS) Secretaries to adopt changes to remedy alleged abuses in the H-1B program. While it is hard to determine what this will mean, there are a few takeaways from the EO:
- Employers that have had or anticipate a layoff may need to carefully consider whether to file an H-1B petition. The EO appears designed to increase scrutiny of employers that have conducted significant layoffs while continuing to use the H-1B program.
- There is no law that prohibits an employer from filing an H-1B petition after a layoff. In adjudicating H-1B filings (including extensions) and processing a current employee’s application for a new visa stamp in their passport if they travel abroad, a layoff could be flagged as a negative factor in the discretionary decision to issue the visa or grant the extension.
- If USCIS identifies a layoff, it could refer the H-1B petition to DOL to verify compliance with PERM layoff-disclosure requirements (employers cannot file a PERM if there was a layoff in the past six months without contacting impacted and possibly qualified U.S. workers).
- Agencies may conduct retroactive reviews to focus on whether employers properly classified H-1B positions and select appropriate prevailing wage levels when filing petitions.
- These efforts will likely impose an added burden for all H-1B employers. USCIS may conduct regular searches of public online databases (such as SEC filings and company employee LinkedIn reports) for evidence of any potential layoffs by petitioners and issue increased Requests for Evidence (RFEs) seeking more information.
We will continue to monitor developments related to the EO and proclamation, and we will provide updates in our newsletters.
DHS Proposes Eliminating the 60-Day Grace Period
Effective October 1, 2026, DOS has broadened its online presence review to cover applicants in the TN nonimmigrant visa classification. The online presence review already applies to other nonimmigrant classifications such as F-1, H-1B, and J-1. The DOS announcement on this subject instructs applicants to set the privacy settings on their social media profiles to "public" or "open."
As practitioners gain experience with the online presence review for TN applicants, and trends emerge, we will provide updates in our newsletters.
A Federal Court Postpones the F and J Fixed Admission Period
As we reported last month, a recent final rule would have replaced duration of status with fixed periods of admission for F-1 and J-1 nonimmigrants. On September 14, 2026, the Federal District Court in Massachusetts postponed the effective date of the final rule. The court found that the plaintiffs had demonstrated a substantial likelihood of success on the merits of their Administrative Procedure Act (APA) claim (based on deficiencies in the rulemaking process), and that immediate irreparable harm would follow absent relief. The rule is postponed, not vacated, and the case continues on the merits.
The final rule would have done the following:
- F and J nonimmigrants would be admitted for a fixed period of four years or the program end date, whichever came first, regardless of the actual length of the program.
- Anyone needing more time which, based on the record before the court, meant most doctoral students and many undergraduates would file a Form I-539 extension of stay request. An immigration officer would have sole discretion to grant or deny the request, with no right to appeal.
- The departure period would shrink from 60 days to 30 days.
- F nonimmigrants could not pursue a second degree at the same or a lower level, which as a practical matter would foreclose joint and dual degree programs.
- Graduate students could not change educational objectives or transfer institutions, subject only to an extenuating circumstances exception.
A postponed rule is not a withdrawn rule. We will be monitoring developments.
Client Flyer: Understanding Lawful Status, Authorized Stay, and Unlawful Presence
It is important for foreign nationals in the US to understand the distinctions between lawful status, authorized stay, and unlawful presence. These closely related concepts can directly affect an employee’s immigration filing. The attached Client Flyer contains helpful basic information on the topic. Click here to read the flyer.
