U.S. District Court Declares $100,000 H-1B Fee Unlawful

What’s Happening

On Monday, June 8, 2026, a federal district court in Massachusetts vacated the $100,000 H-1B payment requirement imposed by President Trump's Proclamation 10973, signed on September 19, 2025. The policy is declared unlawful and unenforceable effective immediately. 

What You Need to Know

The court struck down the policy on three independent grounds. 

First, the $100,000 payment is an unconstitutional tax. Only Congress has the power to levy taxes, and Congress never delegated that power to the President through the immigration statutes he relied on. The court drew on the Supreme Court’s 2026 ruling in Learning Resources v. Trump, which reached the same conclusion about International Emergency Economic Powers Act (IEEPA) tariffs.

Second, the agencies exceeded their statutory authority. No law authorized USCIS or the State Department to impose a $100,000 tax. Rather, the existing fee-setting authority in the immigration statutes covers only cost-recovery adjudication fees. 

Third, the policy was arbitrary and capricious. The agencies implemented it without any reasoned explanation, without assessing employers’ reliance interests, and without considering its impact on healthcare and education.

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U.S. District Judge Strikes Down USCIS Processing Freeze as Unlawful

What’s Happening

A federal court today invalidated four separate United States Citizenship and Immigration Service (USCIS) policies that have been freezing immigration benefit applications for nationals of 39 countries subject to the Trump administration's Travel Ban. These freezes, in place since late 2025, have prevented USCIS from issuing final decisions on work permits, nonimmigrant work visas, green cards, and naturalization filings, leaving thousands of employees, workers, and families in prolonged legal uncertainty and facing potential lapses in immigration status and work authorization. The specific policies the decision struck down include the:

  • Global Asylum Hold Policy: suspended adjudication of all asylum and withholding-of-removal applications, regardless of country of origin.

  • Benefits Hold Policy: froze adjudication of green card, work permit, and other immigration benefit applications for nationals of Travel Ban countries.

  • Comprehensive Re-Review Policy: required re-examination of already-approved benefits for Travel Ban country nationals who entered the U.S. on or after January 20, 2021.

  • Country-Specific Factors Policy: directed USCIS officers to treat an applicant's national origin as a "significant negative factor" when adjudicating discretionary benefits.

All four policies were vacated by the court and deemed to be an arbitrary, capricious, and unlawful overreach of executive authority.

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USCIS Appears to Walk Back Impact of AOS Policy Memo Following Heavy Backlash

What’s Happening

On Friday, May 29, 2026, one week after issuing a Policy Memorandum (“PM”) directing that consular processing should be the primary path to permanent residence and characterizing adjustment of status as an “extraordinary act of administrative grace,” USCIS appears to be walking back the PM's sweeping implications for how adjustment of status applications are adjudicated.

As reported by The New York Times and other major media outlets, an unnamed agency spokesperson clarified on Friday that the PM was not meant to be a blanket change in how adjustment of status applications are adjudicated but, instead was “just a reminder to officers of their discretionary authority, which has always existed on a case-by-case basis.”

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USCIS Issues Major Policy Guidance on Discretionary Denials in Adjustment of Status Cases

What’s Happening

On May 21, 2025, U.S. Citizenship and Immigration Services (USCIS) announced the issuance of Policy Memorandum PM-602-0199 (“PM”), providing sweeping new guidance on the exercise of discretion in adjustment of status (AOS) applications under INA § 245. This memorandum represents a significant shift in USCIS adjudication policy, emphasizing that adjustment of status is a privilege, not a right, and that discretionary denials should be used more robustly even where applicants are otherwise statutorily eligible.

This guidance will have immediate and substantial implications for employers sponsoring foreign national workers for permanent residence, particularly those with employees who have any criminal history, immigration violations, or other potentially negative factors in their record. While the PM will have implications for all types of adjustment of status applications, this post focuses primarily on the impact of the PM on employment-based filings.

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USCIS Issues New Regulation on Signature Requirements for Immigration Benefit Requests

What’s Happening

USCIS has announced an Interim Final Rule (IFR), effective July 10, 2026, clarifying its position on immigration benefit requests with invalid signatures. This regulation aims to strengthen the immigration process but raises concerns for applicants and employers.

Under the new rule, if a request is accepted but later challenged due to signature validity, USCIS “may” reject or deny the request and retain the filing fee upon denial. This change is intended to deter improper practices like copy-pasting signatures and to maintain the integrity of the application queue, particularly in limited categories. However, many see the fee retention as a punitive measure rather than a straightforward correction.

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June 2026 Department of State Visa Bulletin Summary

The Department of State has released the June 2026 Visa Bulletin. D&S provides a Monthly Summary of the employment-based priority dates.

Employment-Based Application Final Action Dates
Employment-Based All Chargeability Areas Except Those Listed China-mainland born India Mexico Philippines
1st C 01APR23 15DEC22 C C
2nd C 01SEP21 01SEP13 C C
3rd 01JUN24 01AUG21 15DEC13 01JUN24 01AUG23
Other Workers 01FEB22 01APR19 15DEC13 01FEB22 01NOV21
4th 15JUL22 15JUL22 15JUL22 15JUL22 15JUL22
Certain Religious Workers 15JUL22 15JUL22 15JUL22 15JUL22 15JUL22
5th Unreserved
(including C5, T5, I5, R5, NU, RU)		 C 22SEP16 01MAY22 C C
5th Set Aside:
Rural (20%, including NR, RR)		 C C C C C
5th Set Aside:
High Unemployment (10%, including NH, RH)		 C C C C C
5th Set Aside:
Infrastructure (2%, including RI)		 C C C C C
Employment-Based Application Filing Dates
Employment-Based All Chargeability Areas Except Those Listed China-mainland born India Mexico Philippines
1st C 01DEC23 01DEC23 C C
2nd C 01JAN22 15JAN15 C C
3rd C 01JAN22 15JAN15 C 01JAN24
Other Workers 01AUG22 01OCT19 15JAN15 01AUG22 01AUG22
4th 01JAN23 01JAN23 01JAN23 01JAN23 01JAN23
Certain Religious Workers 01JAN23 01JAN23 01JAN23 01JAN23 01JAN23
5th Unreserved
(including C5, T5, I5, R5)		 C 01MAR17 01MAY24 C C
5th Set Aside:
(Rural: NR, RR - 20%)		 C C C C C
5th Set Aside:
(High Unemployment: NH, RH - 10%)		 C C C C C
5th Set Aside:
(Infrastructure: RI - 2%)		 C C C C C
Family-Based Application Final Action Dates
Family-Sponsored All Chargeability Areas Except Those Listed China-mainland born India Mexico Philippines
F1 01SEP17 01SEP17 01SEP17 08NOV07 01MAY13
F2A 01JAN25 01JAN25 01JAN25 01JAN24 01JAN25
F2B 22SEP17 22SEP17 22SEP17 15FEB09 08APR13
F3 15FEB12 15FEB12 15FEB12 01MAY01 22NOV05
F4 08NOV08 08NOV08 01NOV06 08APR01 15JUL07
Family-Based Application Filing Dates
Family-Sponsored All Chargeability Areas Except Those Listed China-mainland born India Mexico Philippines
F1 01OCT18 01OCT18 01OCT18 01OCT08 22APR15
F2A C C C C C
F2B 22MAR18 22MAR18 22MAR18 15MAY10 01OCT13
F3 08DEC12 08DEC12 08DEC12 15JUL01 08AUG06
F4 22DEC09 22DEC09 15DEC06 30APR01 22MAR08

In June 2026, USCIS will accept employment-based adjustment of status applications based on the Final Action Dates For Employment-Based Preference chart.

To be eligible to file an adjustment of status application in June 2026, foreign nationals must have a priority date that is earlier than that listed on the Final Action Dates chart.

The EB-1 Final Action Date for India retrogressed to December 15, 2022 and China remains April 1, 2023. All other countries will remain current.

The EB-2 Final Action Date for India advanced nearly 14 months to September 1, 2013. The Final Action Date for China remains September 1, 2021. The Final Action Date for nationals of all other countries will remain current under the June 2026 visa bulletin.

The EB-3 Professional/Skilled Worker Final Action Date for India advanced one month to December 15, 2013. The Final Action Date for China advanced to August 1, 2021. The Final Action Date for the Philippines remains August 1, 2023. The Final Action Date for nationals of all other countries except India, China, and Philippines remains June 1, 2024.

The EB-4 category Final Action Date for nationals of all countries remains July 15, 2022. Additionally, the Certain Religious EB-4 category for nationals of all countries will remain at July 15, 2022.

With respect to the Final Action Date for the EB-5 Unreserved categories, India will remain at May 1, 2022, and China will remain at September 22, 2016. All other countries will remain current. The EB-5 “Set-Aside” categories (Rural, High unemployment, and Infrastructure) will also remain current for all countries.

USCIS Implements Enhanced Security Checks: Implications for Employment-Based Filings

What’s Happening

Various news outlets and the American Immigration Lawyers Association (AILA) have confirmed that recent internal guidance from the U.S. Citizenship and Immigration Services (USCIS) signals a significant shift in adjudication procedures that will directly affect employment-based immigration processes. According to reporting by CBS News, the agency is now requiring expanded FBI background checks for a broad range of immigration benefits, including adjustment of status (Form I-485) and naturalization applications. 

In response to media inquiries, USCIS has stated that “any delay in decision issuance should be brief and resolved shortly.” However, given the practical implications of re-vetting cases, the current length of the expected delays is unknown.

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Department of Status May 2026 Visa Bulletin Summary

The Department of State has released the May 2026 Visa Bulletin. D&S provides a Monthly Summary of the employment-based priority dates.

Employment-Based – Final Action Dates
Category All China India Mexico Philippines
EB-1C01APR2301APR23CC
EB-2C01SEP2115JUL14CC
EB-301JUN2415JUN2115NOV1301JUN2401AUG23
Other Workers01FEB2201FEB1915NOV1301FEB2201NOV21
EB-415JUL2215JUL2215JUL2215JUL2215JUL22
EB-5 UnreservedC01SEP1601MAY22CC
Employment-Based – Filing Dates
Category All China India Mexico Philippines
EB-1C01DEC2301DEC23CC
EB-2C01JAN2215JAN15CC
EB-3C01JAN2215JAN15C01JAN24
Other Workers01AUG2201OCT1915JAN1501AUG2201AUG22
EB-401JAN2301JAN2301JAN2301JAN2301JAN23
EB-5 UnreservedC01MAR1701MAY24CC
Family-Based – Final Action Dates
Category All China India Mexico Philippines
F101SEP1701SEP1701SEP1715AUG0701MAY13
F2A01AUG2401AUG2401AUG2401AUG2401AUG24
F2B22MAY1722MAY1722MAY1715FEB0908APR13
F315FEB1215FEB1215FEB1201MAY0122NOV05
F415SEP0815SEP0801NOV0608APR0115JUL07
Family-Based – Filing Dates
Category All China India Mexico Philippines
F101OCT1801OCT1801OCT1801OCT1822APR15
F2ACCCCC
F2B01JAN1801JAN1801JAN1815MAY1001OCT13
F308DEC1208DEC1208DEC1215JUL0108AUG06
F401SEP0901SEP0915DEC0630APR0122MAR08

Summary

In May 2026, USCIS will accept employment-based adjustment of status applications based on the Final Action Dates For Employment-Based Preference chart.

To be eligible to file an adjustment of status application in May 2026, foreign nationals must have a priority date that is earlier than that listed on the Final Action Dates chart.

The EB-1 Final Action Date for India and China remains April 1, 2023. All other countries will remain current.

The EB-2 Final Action Date for India remains July 15, 2014. The Final Action Date for China remains September 1, 2021. The Final Action Date for nationals of all other countries will remain current under the May 2026 visa bulletin.

The EB-3 Professional/Skilled Worker Final Action Date for India remains November 15, 2013. The Final Action Date for China remains June 15, 2021. The Final Action Date for the Philippines remains August 1, 2023. The Final Action Date for nationals of all other countries except India, China, and Philippines remains June 1, 2024.

The EB-4 category Final Action Date for nationals of all countries remains July 15, 2022. Additionally, the Certain Religious EB-4 category for nationals of all countries will remain at July 15, 2022.

With respect to the Final Action Date for the EB-5 Unreserved categories, India will remain at May 1, 2022, and China will advance by three weeks to September 22, 2016. All other countries will remain current. The EB-5 “Set-Aside” categories (Rural, High unemployment, and Infrastructure) will also remain current for all countries.

Recent Trends in Consular Visa Processing: What Employers Need to Know

What’s Happening

Recent updates and reports from the American Immigration Lawyers Association (AILA), the Department of State (DOS), and U.S. Citizenship and Immigration Services (USCIS) indicates that consular visa processing is becoming more complex and less predictable under the Trump Administration.

Key trends include:

  • Uneven appointment availability across posts

  • Increased adjudication scrutiny

  • Expanded online vetting and background reviews for certain visa categories

Notable developments include:

  • Significant delays for employment-based nonimmigrant and immigrant visa interviews and E visa adjudications at certain posts

  • Continued uncertainty around immigrant visa bans and DOS-issued pauses

  • New online processing for certain employment-based immigrant visas at the National Visa Center (NVC)

  • Expanded visa bond requirements for some B-1/B-2 applicants

  • Ongoing travel disruptions affecting consular operations in parts of the Middle East

Key Takeaway:

Employers should expect consular processing to remain highly post-specific, more heavily vetted, and harder to predict than in prior years. However, with early planning, proactive case strategy, and careful coordination around travel and timing, many of these challenges can still be managed successfully.

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D&S Travel Advisory for F-1 Students with H-1B Registration Selections

What's Happening

If you are an F-1 student who has been selected in this year's H-1B lottery, congratulations! However, before you make any summer travel plans, it is important to understand that your H-1B status will not take effect until October 1st, and traveling internationally before that date requires careful planning.

The period between now and October 1st comes with important considerations that can affect your ability to reenter the United States and maintain your work authorization. With recent policy changes, including new social media background checks and increased scrutiny at the border, it is more important than ever to make sure you fully understand the risks before booking any international travel.

This advisory breaks down what you need to know to make informed decisions about traveling abroad this summer.

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DOL Proposes Significant Increase to Prevailing Wage Levels for H-1B, H-1B1, E-3, and PERM Program

What’s Happening

The Department of Labor (DOL) has issued a Notice of Proposed Rulemaking (NPRM) that would significantly increase prevailing wage requirements across the H-1B, H-1B1, E-3, and PERM programs. This NPRM is expected to be published in the Federal Register on March 27, 2026. The proposed rule, issued under the title “Improving Wage Protections for the Temporary and Permanent Employment of Certain Foreign Nationals in the United States,” will be subject to a 60-day public comment period following its publication in the Federal Register.

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Department of State April 2026 Visa Bulletin Summary

The Department of State has released the April 2026 Visa Bulletin. D&S provides a Monthly Summary of the employment-based priority dates. In April 2026, USCIS will accept employment-based adjustment of status applications based on the Dates for Filing of Employment-Based Preference chart.

To be eligible to file an adjustment of status application in April 2026, foreign nationals must have a priority date that is earlier than that listed on the Dates for Filing chart.

The EB-1 Date for Filing for India and China remains December 1, 2023. All other countries will remain current.

The EB-2 Date for Filing for India will advance by two and a half months, to January 15, 2015. The Date for Filing for China remains January 1, 2022. The Date for Filing for nationals of all other countries will remain current under the April 2026 visa bulletin.

The EB-3 Professional/Skilled Worker Date for Filing for India will advance by five months to January 15, 2015. The Date for Filing for China remains January 1, 2022. The Date for Filing for the Philippines remains January 1, 2024. The Date for Filing for nationals of all other countries except India, China, and Philippines will advance by over fourteen months and become current.

The EB-4 category Date for Filing for nationals of all countries remains January 1, 2023. Additionally, the Certain Religious EB-4 category for nationals of all countries will remain at January 1, 2023.

With respect to the Final Action Date for the EB-5 Unreserved categories, India will remain at May 1, 2022, and China will advance by two weeks to September 1, 2016. All other countries will remain current. The EB-5 “Set-Aside” categories (Rural, High unemployment, and Infrastructure) will also remain current for all countries.

Department of State March 2026 Visa Bulletin Summary

The Department of State has released the March 2026 Visa Bulletin. D&S provides a Monthly Summary of the employment-based priority dates. In March 2026, USCIS will accept employment-based adjustment of status applications based on the Dates for Filing of Employment-Based Preference chart. 

To be eligible to file an adjustment of status application in March 2026, foreign nationals must have a priority date that is earlier than that listed on the Dates for Filing chart.

The EB-1 Date for Filing for India and China will advance to December 1, 2023. All other countries will remain current. 

The EB-2 Date for Filing for India will advance to November 1, 2014 and the Date for Filing for China remains January 1, 2022. The Date for Filing for nationals of all other countries is current under the March 2026 visa bulletin.

The EB-3 Professional/Skilled Worker Date for Filing for India will remain at August 15, 2014, and the Date for Filing for China will remain at January 1, 2022. The Date for Filing for nationals of  all other countries will advance to January 15, 2024. 

The EB-4 category Date for Filing for nationals of all countries will advance to January 1, 2023.. Additionally, the Certain Religious EB-4 category for nationals of all countries will advance to January 1, 2023.

With respect to the Final Action Date for the EB-5 Unreserved categories, India will remain at May 1, 2024, and China will advance to October 1, 2016. All other countries will remain current. The EB-5 “Set-Aside” categories (Rural, High unemployment, and Infrastructure) will remain current for all countries.

10 Best Practices for Avoiding the $100,000 H-1B Fee this Cap Season

The guidance below is intended to help employers and employees navigate the H-1B filing process, avoid potential pitfalls, and provide clarity regarding if and when the $100,000 fee may apply to a particular petition. However, we strongly recommend discussing the specific facts of each individual case with your attorney at D&S. 

Why is The H-1B Filing Process This Year Different?

In addition to the changes in the H-1B lottery discussed here, the introduction of the $100,000 fee for certain H-1B petitions has made the post-selection phase of the H-1B cap process more nuanced than in prior years. The new rules governing the $100,000 H-1B fee mean that routine cap-season decisions, such as filing strategy, employee location and status at the time of filing, and international travel during the filing process, now require even more deliberate planning. 

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H-1B Cap – Weighted Selection FAQ

On January 30, 2026, the United States Citizenship and Immigration Service (USCIS) announced that the FY2027 H-1B registration window will run from 12 noon ET on March 4, 2026 through 12 noon ET on March 19, 2026. Given the changes to how the lottery is run this year, D&S has included some FAQs below to help employers and employees better understand what to expect from this new selection process.

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DOS is Pausing Immigrant Visa Processing for 75 Countries

What’s Happening

On January 14, 2026, The Department of State (DOS) announced on its official X account a suspension of immigrant visa processing for nationals of 75 countries deemed likely to require public assistance while living in the United States. According to DOS’s post, the suspension is indefinite and “will remain active until the U.S. can ensure that new immigrants will not extract wealth from the American people”. Fox News, Forbes, and other new outlets are reporting that an internal DOS cable instructs consular officers to stop processing immigrant visa applications for individuals from the affected countries beginning on January 21, 2026, though this date has not been confirmed and the processing suspension could go into effect at any time absent further information from the State Department.

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Department of State February 2026 Visa Bulletin Summary

The Department of State has released the February 2026 Visa Bulletin. D&S provides a Monthly Summary of the employment-based priority dates. In February 2026, USCIS will accept employment-based adjustment of status applications based on the Dates for Filing of Employment-Based Preference chart. 

To be eligible to file an adjustment of status application in February 2026, foreign nationals must have a priority date that is earlier than that listed on the Dates for Filing chart.

The EB-1 Date for Filing for India and China will remain at August 1, 2023. All other countries will remain current. 

The EB-2 Date for Filing for India remains December 1, 2023 and the Date for Filing for China remains January 1, 2022. The Date for Filing for nationals of all other countries will advance to October 15, 2024. 

The EB-3 Professional/Skilled Worker Date for Filing for India will remain at August 15, 2014, and the Date for Filing for China will remain at January 1, 2022. The Date for Filing for nationals of  all other countries will advance to October 1, 2023. 

The EB-4 category Date for Filing for nationals of all countries will remain at March 15, 2021. Additionally, the Certain Religious EB-4 category will become unavailable. 

With respect to the Final Action Date for the EB-5 Unreserved categories, India will remain at May 1, 2024, and China will remain at August 22, 2016. All other countries will remain current. The EB-5 “Set-Aside” categories (Rural, High unemployment, and Infrastructure) will remain current for all countries.

USCIS Premium Processing Fees To Increase Effective March 1, 2026

What’s Happening

On January 9, 2026, U.S. Citizenship and Immigration Services (USCIS) announced that the Department of Homeland Security (DHS) has issued a final rule increasing premium processing fees for certain employment-based immigration filings beginning March 1, 2026. The fee increase is authorized under the USCIS Stabilization Act, which permits DHS to adjust premium processing fees every two years to account for inflation. The last time DHS increased the fees was in February 2024.

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USCIS Issues New Policy Expanding Adjudicative Holds and Mandatory Re-Review for Applicants from Travel Ban Countries

What’s Happening

On January 1, 2026, U.S. Citizenship and Immigration Services (USCIS) issued a new Policy Memorandum (PM) expanding its prior adjudication hold and re-review framework for immigration benefit applications for individuals from countries listed in President Trump’s December 2025 expanded travel ban proclamation. The new PM is effective immediately and directs USCIS officers to place holds on final adjudication of all pending benefit requests and to conduct re-reviews of immigration benefits that were approved on or after January 20, 2021, for individuals from the expanded travel ban countries.  

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DHS Finalizes Wage-Level Weighted H-1B Cap Selection Process

What’s Happening

The Department of Homeland Security (DHS) has issued a final rule replacing the random, computerized H-1B visa lottery with a weighted selection process favoring higher wage applicants. This rule is unchanged from the proposed rule published in September this year. The final rule was published in advance in the Federal Register on December 23, 2025, and is scheduled for full publication on December 29, 2025. It is set to become effective 60 days after publication, on February 27, 2026, in time for the Fiscal Year 2027 H-1B cap season set to begin in March 2026, although litigation challenging the rule in federal court is possible. 

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