What’s Happening
On September 30, 2026, a federal court in California issued a ruling blocking the $100,000 H-1B fee.
In Global Nurse Force v. Trump, Judge Haywood S. Gilliam, Jr. sided in part with the groups challenging the fee and struck down the government agency policies that put it into practice. The agencies cannot enforce or apply those policies unless they first go through the formal process the law requires for creating a new rule. This is an early-stage ruling, and the case is still ongoing.
This is the second federal court to block the $100,000 fee. As D&S previously reported, a federal court in Massachusetts struck down the fee in June 2026. The government is appealing that decision, but the appeal court refused to let the fee go back into effect while the appeal plays out.
Read MoreWhat’s Happening?
The Department of Homeland Security (“DHS”) has released a proposed rule that would eliminate the discretionary grace period of up to 60 days currently available to certain employment-based nonimmigrant workers following the end of their employment. As we previously reported in August, DHS had begun moving forward with this regulatory proposal, although the proposed regulatory text had not yet been released.
The proposed rule, titled “Eliminating the Discretionary 60-day Grace Period,” is scheduled for publication in the Federal Register on September 11, 2026 and would apply to individuals in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN status, as well as their qualifying dependents.
Importantly, there is no change to the 60-day grace period at this time. The current rule remains in effect unless and until DHS completes the rulemaking process and issues a final rule with an effective date.
Read MoreWhat’s Happening
On August 25, 2026, the Department of Homeland Security (“DHS”) is scheduled to publish a proposed rule that would impose a new $103,265 fee on all cap-subject H-1B petitions. The fee would apply to petitions filed under both the regular H-1B cap and the advanced-degree exemption and would be charged in addition to all other required filing fees.
It is important to note that the proposal is not yet final and will not take effect upon publication. DHS must first accept and review public comments and publish a final rule with an implementation date.
Read MoreOn August 6, 2026, DHS submitted a proposed rule titled “Eliminating the Discretionary 60-day Grace Period” to the White House Office of Information and Regulatory Affairs (“OIRA”) for regulatory review. The proposal could have significant consequences for foreign national employees who are laid off, resign, or otherwise end employment before their authorized period of stay expires, as well as for employers seeking to hire foreign nationals following the end of employment with another company.
Importantly, nothing has changed yet. The existing 60-day grace period remains available under current regulations.
Read MoreOn July 24, 2026, the U.S. Court of Appeals for the First Circuit denied the federal government’s request to stay a district court order vacating the policy that implemented the $100,000 H-1B payment requirement.
The $100,000 payment requirement should no longer apply while the appeal is pending.
Because the First Circuit declined to keep the district court’s order on hold, USCIS should no longer assess the additional $100,000 payment under the vacated policy unless a later court order changes the current status.
Read MoreBeginning January 29, 2024, the State Department (DOS) will open a long-awaited domestic visa renewal pilot program for eligible H-1B visa renewal applicants. The program allows certain applicants who received an H-1B visa from a U.S. embassy or consulate in Canada or India within specified dates to renew an H-1B visa from within the United States, sparing them the trip to a U.S. consulate abroad.
Read More2/8/2021 UPDATE: USCIS published a final rule delaying until December 31, 2021, the effective date of its final rule creating a wage-based selection process for H-1B petitions, which was originally set to become effective March 9, 2021.
Read More1/7/2021 UPDATE: On January 8, 2021 the administration will publish the final version of this rule in the Federal Register and it will take effect 60 days from publication. It is possible that the legality of the rule could be challenged in Federal Court and an injunction could be put in place preventing the rule from taking force while its legality is litigated. Similarly, the rule could also be placed on hold by the incoming Biden administration, delaying or preventing its implementation.
D&S will continue to monitor both the Biden Administration’s actions with respect to this rule as well as any lawsuits filed challenging the rule and will provide updates as they become available.
Read MoreRESTRUCTURING THE H-1B LOTTERY TO A WAGE-BASIS
On October 28, 2020 the Trump Administration proposed a significant change to the process of filing cap subject petitions for H-1B nonimmigrant classification. The proposal would replace the current random selection process by which USCIS selects H-1B registrations for filing of H-1B cap-subject petitions with a system that selects registrations based on the highest Occupational Employment Statistics (OES) prevailing wage level that the proffered wage equals or exceeds for the relevant Standard Occupational Classification (SOC) code and area(s) of intended employment. The proposed rule, the full text of which is available here, was published in the Federal Register on November 2, 2020 and comments on the rule must be submitted on or before December 2, 2020.
Please note that this rule will NOT take effect until a Final Rule is published and made effective.
Read MoreWHAT’S HAPPENING
On October 6th, 2020, The Department of Homeland Security (DHS) and Department of Labor (DOL) announced that they will publish new regulations that would significantly impact the rules governing the H-1B visa, as well as wage requirements in connection with the H-1B, H-1B1 and E-3 visas and the PERM labor certification process.
Both rules are expected to be published as Interim Final Rules (IFRs) in the Federal Register on Thursday, October 8th. The DHS Rule will take effect 60 days after publication and while stakeholders can comment on the rule during this 60 day period, comments will not be considered before the rule takes effect. The DOL Rule will take effect immediately upon publication and will not have a delayed effective date, though DOL will accept public comments for 30 days. Both rules are likely to be challenged in court, meaning that injunctions could halt their implementation, at least temporarily, pending litigation.
Read MoreToday USCIS announced that effective Tuesday, March 12, 2019, Premium Processing Service will resume for all H-1B petitions. Premium processing service was previously suspended by USCIS back in March of 2018 for all FY2019 cap cases and in August 2018, it expanded and extended the suspension or more types of H-1B petitions. Since then, the Service has been incrementally restoring premium processing Service with the full restoration beginning March 12, 2019.
Read MoreUSCIS recently issued a Policy Memorandum adopting Matter of S- Inc., a decision issued by the Administrative Appeals Office (AAO) regarding the prohibition on “related entities” filing multiple cap-subject H-1B petitions for the same H-1B beneficiary in an effort to increase chances of acceptance into the H-1B lottery. USCIS’s adoption of this decision establishes policy guidance that applies to and guides USCIS visa adjudications, and the Memo directs USCIS personnel are to follow the reasoning in this decision in similar cases.
Read MoreToday, March 20, 2018, USCIS announced that it will be suspending premium processing service for H-1B cap-subject petitions for fiscal year 2019. The temporary suspension is expected to last until September 10, 2018 and applies only to FY2019 cap-subject petitions, meaning those that are being filed as cap-exempt, including requests for change of H-1B employer, extension of H-1B status, and H-1B petition amendments, for example, will continue to be eligible for premium processing service.
Read MoreForeign nationals who are currently employed pursuant to F-1 Optional Practical Training (OPT) and for whom and H-1B petition is being submitted under this year’s H-1B cap are advised to proceed with caution when planning international travel leading up to and during the H-1B cap filing window (which starts April 2, 2018). Depending upon when their OPT expires, when and how they plan to commence H-1B status, and whether they will require a new F-1 visa stamp before October 1st, travel may not be possible or may come at increased risk.
Read MoreMany employers are aware of the fact that they are responsible for the reasonable cost of a H-1B employee's return transportation home if they terminate an employee prior to the expiration of their H-1B petition. What many employers don't realize is that this requirement is also an important step in effecting a "bona fide" termination of an H-1B employee. In this post, D&S provides some additional information, details, and guidance on ensuring that H-1B employers effect a bona fide termination of an H-1B employee to reduce the risk that they could be subject to payment of back wages and penalties from the Department of Labor (DOL).
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