Authors: Peter Asaad & Lori Geisinger
The U.S. immigration environment is undergoing rapid change. We partner with HR professionals, legal departments and business leaders to protect existing talent pipelines, expand talent pipelines beyond the H-1B, and maintain immigration compliance under evolving rules.
1. DHS Ends Automatic Extension of Employment Authorization
Until recently, employers and their foreign national employees have benefitted from the employee’s ability to automatically extend their Employment Authorization Document (EAD) validity period in certain categories for up to 540 days if the employee files a renewal application before the expiration of their current EAD. For Form I-9 purposes, employers have been able to rely on the employee’s USCIS receipt notice (Form I-797C) indicating a timely filed EAD renewal application in the same employment eligibility category as stated on the expired EAD to evidence continued work authorization while USCIS processes the renewal application.
The Department of Homeland Security (DHS) published an Interim Final Rule (IFR) that became effective October 30, 2025, eliminating the availability of the up-to-540-day automatic extension for certain categories of timely-filed Form I-765 renewals filed on or after that date. Employers and work-authorized individuals in impacted EAD categories—including TPS-based EADs, asylees/refugees, pending asylum and adjustment-of-status applicants, H-4 spouse EADs, dependents of E/L nonimmigrants, VAWA self-petitioners, and others—must now ensure that individuals do not continue work simply based on a timely‐filed renewal past their EAD expiration unless they hold separate valid work authorization. The rule does not affect automatic extensions already in place for renewals timely filed before October 30, 2025, nor does it affect extension regimes established by statute or specific Federal Register notices (for example, certain TPS-EAD extensions and STEM OPT 180-day extensions).
Takeaway: Affected foreign nationals should be reminded to file their EAD renewal applications as soon as they are permitted – up to 180 days in advance of the EAD expiration. Employers should be prepared for some disruption in work authorization due to delays in EAD processing, but strategic and advanced planning can help mitigate such disruption due to lapses in employment authorization.
2. USCIS Clarifies H-1B $100k Visa Fee Proclamation; Narrows who is Covered
Federal immigration officials have finally clarified key details about the $100,000 H-1B visa fee announced last month, and the update provides some necessary clarity critical for future workforce planning. The fee, introduced by a September 19, 2025, Presidential Proclamation, applies to certain new H-1B petitions filed on or after September 21, 2025. The new USCIS guidance released on October 20, 2025, significantly narrows which petitions are covered.
The $100,000 fee applies only to new H-1B petitions filed after September 21, 2025, for beneficiaries outside of the U.S. who do not have a valid H-1B visa, and for those in the US requesting consular notification, port of entry notification, or pre-flight inspection. It also applies in the context of a change, amendment or extension of status petition filed with USCIS if USCIS deems the foreign national ineligible for a change, amendment or extension of status such that the foreign national must obtain an H-1B visa outside of the U.S to re-enter in H-1B status. USCIS emphasized that exceptions will be granted only in “extraordinarily rare” cases and set a high threshold for approval, including requiring evidence that the worker’s presence is in the U.S. national interest. A link is now live to pay the $100K fee online for entry on H-1B through consular processing petitions.
Recent guidance also confirmed that the fee does not apply to petitions filed with USCIS for amendments, changes of status, or extensions for individuals inside the United States, including changes from F-1 to H-1B status, and any previously issued, valid H-1B visas, or petitions filed before September 21, 2025. USCIS confirmed that H-1B visa holders and approved beneficiaries may continue traveling internationally with valid H-1B visas without triggering the fee.
With this new guidance, employers may plan their hiring to include H-1B petitions for individuals in the U.S. pursuant to change of status from F-1 OPT to H-1B, a common transition under the lottery for H-1B cap-subject petitions. However, if the student fails to maintain valid F-1 status or travels abroad while the petition is pending - thereby abandoning the change-of-status request - the employer would need to pay the $100,000 fee or qualify for a national interest exception for approval. F-1 students should therefore remain fully compliant with all status and travel rules.
Two lawsuits - one filed October 3 and another by the U.S. Chamber of Commerce shortly thereafter - seek to block enforcement of the fee. If an injunction is granted, implementation could change rapidly.
The PLG Immigration Team will continue to monitor litigation and further agency updates affecting H-1B program operations and costs. Employers and their foreign national employees in or contemplating H-1B status are reminded to contact the Immigration Team at PLG prior to confirming any international travel plans.
3. USCIS Proposes Weighted Wage-Based Lottery / Selection System for H-1B
The Department of Homeland Security (DHS) has proposed replacing the random H-1B cap lottery with a weighted “wage-based” selection process, giving priority to higher wage offers. Under the proposed system, positions offering higher salaries would have increased odds of selection in the lottery, while entry-level positions offering lower wages could be significantly disadvantaged.
The H-1B visa remains a vital pathway for U.S. employers to hire high-skilled foreign professionals. International students account for 73% of full-time graduate students in electrical and computer engineering programs, yet the annual H-1B quota is capped at 65,000, with 20,000 additional slots for graduates of U.S. master’s or higher degree programs. The number of available H-1B visas falls well below the level of demand—especially in sectors facing persistent shortages of qualified U.S. workers. The weighted lottery system will likely have an adverse impact on recent graduates and the employers that rely on hiring them.
4. H-1B Holders Receiving Deportation Notices During Grace Period
Recent reports indicate that H-1B visa holders are receiving Notices to Appear (NTAs) to H-1B workers who are within the 60-day grace period, even if the H-1B worker has a timely filed change of employer (COE) petition or change of status (COS) application pending.
The NTAs appear to be triggered by an employer’s withdrawal of the H-1B approval notice after employment ends. Immigration and Customs Enforcement (ICE) maintains the regulation allows the Department of Homeland Security (DHS) to “eliminate or shorten this 60-day period as a matter of discretion.” Per the language of the regulation, it should be noted that the grace period is discretionary and may be used only once per “authorized validity period.”
An employer must meet three requirements for a bona termination: expressly terminate employment relationship with the H-1B worker, notify USCIS of the termination, and provide the H-1B worker with payment for return transportation home. A bona fide termination must occur for the employer’s pay obligations to end. Failure to do so keeps the employer liable for the wages listed on the underlying application.
Takeaway:
- The 60-day grace period is discretionary in nature.
- File change of employer or change of status petitions as early as possible within the grace period or before termination, if possible.
- Consider utilizing premium processing service and electronic filing when available.
- Use bridge filings (e.g., B-2 change of status) to minimize time on grace period as needed.
The risk of harm underscores the need for proactive immigration counsel during workforce processes including recruitment, hiring and termination.
5. Proposed Rule: Fixed Periods of Stay for F and J Nonimmigrants
DHS has proposed ending the “duration of status” policy for most F-1 visa holders, replacing it with fixed admission periods for up to the length of the program, including any periods of post-completion practical training, not to exceed four years, plus a 30-day grace period (reduced from the current 60-day grace period), thereby requiring formal extensions to continue study or training. If finalized, F-1 students would need to apply for an extension of stay before pursuing OPT or other post-study activities. Any lapse or denial could jeopardize eligibility for H-1B change-of-status and trigger potential exposure to the $100,000 H-1B entry fee.
6. U.S. Department of Labor (DOL) Launched Project Firewall
On September 19, 2025, the U.S. Department of Labor (DOL) launched Project Firewall, a sweeping enforcement initiative targeting alleged abuses of the H1B visa program.
Takeaway: Employers are advised to undertake immediate compliance reviews to ensure correct wage pay, accurate worksite locations, up‐to‐date Labor Condition Applications (LCAs) and audit-ready documentation. Failure to comply may carry risk of investigations even without worker complaints.
7. Tapping into the Underutilized J-1 Research Scholar Visa
Many U.S. companies are unaware of an underutilized tool that can bring top-tier international researchers directly into their teams — the J-1 Research Scholar visa. The J-1 Research Scholar visa is a cap-free, flexible pathway that allows U.S. companies, universities, and research institutions to host international experts for up to five years to conduct research, observe, or consult.
Why Employers Should Consider It:
- Specialized Expertise: Brings advanced skills and global perspectives to accelerate R&D and innovation.
- Faster, Flexible Process: Streamlined application through an authorized sponsor; not subject to H-1B quotas or wage rules.
- Strategic Partnerships: Builds global networks and market connections.
Eligibility: Candidates typically hold specialized degrees and/or significant professional expertise in research, design, testing, or development aimed at creating or improving products, services, or processes.
Takeaway: The J-1 Research Scholar program offers a practical alternative, low-barrier option for infusing top international talent into your workforce without the delays and impediments of other work visa categories.
8. I-9 Self Audits Surge for Employers in the Face of Massive ICE Audit Influx
Employers are facing a massive influx of I-9 audits—up 374% since 2017—with ICE now demanding documentation within just three days of notice. During summer 2025, ICE reported more than 5,200 Notices of Inspection (NOIs) served to U.S. businesses in a two-phase nationwide action. The 5,200 NOIs are substantially higher than the 230 NOIs reported for the full year in 2024— a direct signal of higher I-9 enforcement tempo. Moreover, with the recent increase in fines, even minor discrepancies can lead to steep penalties or criminal exposure.
DHS/ICE issued a final rule on January 2, 2025, increasing civil monetary penalties for I-9 violations:
- Paperwork/substantive Form I-9 violations: $288 minimum to $2,861 maximum per violation.
- Knowingly hiring or retaining an unauthorized alien (first offense): $716-$5,724.
- Second offense range: $5,724-$14,308 per unauthorized alien.
- Third or subsequent offense (per unauthorized alien): $8,586-$28,619.
Considerations for Employers:
- E-Verify does not absolve employers of the obligation to maintain I-9 Forms in full compliance.
- Proactively conduct periodic I-9 audits with legal oversight to document good faith corrections
- Train managers on appropriate ICE response procedures.
9. Travel Ban Restrictions
Effective July 10, 2025, the State Department has imposed a new travel ban restricting certain immigrant and nonimmigrant visa categories for nationals of designated countries.
Full bans apply to nationals of: Afghanistan, Burma/Myanmar, Chad, Republic of the Congo, Equatorial Guinea, Eritrea, Haiti, Iran, Libya, Somalia, Sudan, and Yemen. Partial bans—covering tourist, student, exchange, and certain immigrant visas—apply to nationals of: Burundi, Cuba, Laos, Sierra Leone, Togo, Turkmenistan, and Venezuela. Exceptions exist for valid visa holders, green card holders, immediate relatives of U.S. citizens, diplomats, and select international event participants.
This policy could disrupt recruitment pipelines, international assignments, and mobility planning for impacted employees.
10. Legislative and Political Signals
Bipartisan momentum is building behind the Dignity Act of 2025, a comprehensive immigration reform proposal that would streamline green card processing, introduce dual-intent visas for international students, and expand permanent pathways for long-term residents. If enacted, these provisions could substantially improve an employer’s ability to recruit and retain global talent while providing more predictability in workforce planning. However, renewed anti–H-1B and OPT rhetoric from certain members of Congress suggest that future legislative sessions may revisit restrictions on high-skilled visa programs, creating uncertainty for legislation designed to ease restrictions. The outlook is clouded by a policy divide, partly due to growing rhetoric around program “abuse” and “replacement of U.S. workers.”
Meanwhile, at the regulatory level, DHS and DOL continue to advance rulemaking that tighten H-1B and L-1 adjudication standards, eliminate automatic EAD extensions and duration of status, revise prevailing wage rules including a weighted lottery system, and expand employer-compliance obligations.
Employer Considerations:
- Monitor legislative progress and litigation to anticipate impact.
- Work with PLG to participate in regulatory Notice and Comment to proposed rulemaking as well as other industry advocacy to help shape policy outcomes.
- Partner with PLG to review internal workforce strategies and prepare for both potential reforms and tighter visa oversight.
Bottom Line
If you have any concerns, please out to the Immigration Team at PLG to create a proactive, cross-functional approach to respond to the changing immigration landscape. We can help align your HR, legal, and business goals to protect existing foreign national talent, expand talent pipelines beyond the H-1B visa category, and maintain compliance under evolving and impending rules.
