This is an extended version of a recent sermon that includes much greater detail than space allowed in last week’s free newsletter. You can sign up here: https://instituteforsoundpublicpolicy.org/newsletter-signup
Responding to the irrepressible public outcry against employment visa programs such as the H-1B, President Trump’s administration has engaged in everything from executive orders to rulemaking to focused investigations leading to fines and debarments from the program for companies that abuse the system. The results to date have been mixed with more initiatives coming down the pike.
New Fees for H-1B Petitions
Back in September of 2025, during a late Friday afternoon press conference in the Oval Office, President Trump, under the gaze of Commerce Secretary Howard Lutnick, proclaimed a $100,000 payment requirement for certain new H-1B petitions involving beneficiaries outside the United States. Although the administration subsequently clarified and narrowed how the proclamation would be implemented, litigation ultimately prevented the policy from continuing to be enforced nationwide. Several lawsuits challenged the policy, including one brought by the U.S. Chamber of Commerce and the Association of American Universities in Washington, D.C., and another brought by a coalition of 20 states in Massachusetts.
Although U.S. District Judge Beryl Howell rejected a legal challenge by the U.S. Chamber of Commerce in December 2025, citing the president’s broad authority to restrict noncitizens’ entry to the country, the administration lost in Massachusetts in June 2026, when Judge Leo Sorokin concluded that the $100,000 payment functioned like a tax that the executive branch lacked congressional authorization to impose and vacated the agency actions implementing it. The administration appealed. But because the First Circuit refused to stay that ruling, the $100K fee stays blocked for the time being as the administration presses on with its appeals.
Taking a lesson from the above, the administration has also pursued a separate H-1B fee through normal notice-and-comment rulemaking. The proposed rule published in the Federal Register in late August would impose a $103,265 fee on all cap-subject H-1B petitions, including petitions filed under the advanced-degree exemption. Importantly, DHS does not describe this as simply replacing the proclamation. It is a separate regulatory fee that would be imposed in addition to other applicable fees or payments. The comment period for this proposed rule ends on September 24th, and you can submit a public comment here. The original proclamation, meanwhile, was scheduled to expire on September 21, 2026, but it was extended for another year on Friday, September 18, 2026. Additionally, President Trump signed an executive order titled “Enhancing Program Integrity and Interagency Coordination in the Administration of the H-1B Nonimmigrant Visa Program,” which directs federal departments to share labor data more closely and heavily scrutinize H-1B visa employers that have recently conducted American worker layoffs.
DOL’s Prevailing Wage for H-1B Overhaul
The Department of Labor (DOL) has also been active on this front. Back in March, it published a proposed rule and solicited comments regarding raising wage levels for H-1B, E-3, and PERM through across-the-board percentile increases for all four wage tiers. Although this sounded good, the increases were far too modest to be impactful and benefit American workers. For instance, Level I wages should be raised much closer to the local median, not merely the 34th percentile that was proposed. In my view, even the local median would not go far enough; Level I compensation should begin no lower than the 75th percentile for the relevant occupation and geographic area. In layman’s terms, that would generally mean setting the lowest H-1B wage tier at a wage level equal to or higher than what roughly 75 percent of workers in that occupation and geographic area earn.
To date, the final rule has not been published, and DOL has not officially committed to publishing a final rule by the end of 2026 or early 2027.
H-1B Weighted Lottery Selection
In a final rule published in December 2025 that took effect on February 27, 2026, DHS amended its regulations governing the process by which U.S. Citizenship and Immigration Services (USCIS) selects H-1B registrations for filing of H-1B cap-subject petitions. This went into effect for this latest H-1B lottery. Rather than simply favoring workers based on their raw salaries, the system weights registrations according to the applicable OEWS wage level associated with the offered wage, occupation, and geographic area. Level IV registrations receive four entries in the selection process, Level III receives three, Level II receives two, and Level I receives one. Entry-level workers therefore remain eligible to participate but receive the lowest weighting.
Ending the 60-Day Grace Period for H-1B and Other Workers
Earlier this month, DHS published a proposed rule change titled “Eliminating the Discretionary 60-Day Grace Period.” Essentially, those in our country on H-1B, E-1/E-2, E-3, L-1, O-1, TN, and H-1B1 whose employment has ended would generally be required to depart immediately unless they have some other lawful basis to remain in the United States. Under the proposal, they would be considered to have failed to maintain their nonimmigrant status beginning the day after the qualifying employment or activity ends. The comment period for this proposed rule ends on November 10th, and you can submit a public comment here.
During the Obama administration, DHS created an up-to-60-day discretionary grace period to give affected workers time to pursue another immigration option after their employment ended. Under the current regulation, someone receiving that grace period is not considered to have failed to maintain nonimmigrant status solely because the qualifying employment ended during the grace period. The new proposal would eliminate that protection.
It is also important to distinguish being “out of status” from accruing “unlawful presence.” They are not necessarily the same thing, and there is no rule under which unlawful presence simply begins at the six-month mark. Depending on the person’s authorized period of stay and whether USCIS or an immigration judge makes a formal status-violation determination, unlawful presence can begin at a different point. The 180-day and one-year figures instead relate to the statutory consequences once sufficient unlawful presence has accumulated. More than 180 days but less than one year of unlawful presence can trigger a three-year inadmissibility bar after departure, while one year or more can trigger a ten-year bar.
Practically speaking, what it adds is a removability aspect in which anytime the foreigner is out of status, DHS can theoretically issue a Notice to Appear (NTA) and place the individual in removal proceedings. DHS itself acknowledges in the proposal that affected workers who remain after failing to maintain status could become subject to an NTA, although DHS predicts the number of additional NTAs would be relatively small. Whether this rule ultimately survives a legal challenge remains to be seen.
Ending Duration of Status for Foreign Students
The day before the final duration-of-status rule was scheduled to go into effect on September 15, 2026, U.S. District Judge F. Dennis Saylor IV in Boston ruled in favor of a coalition of unions and higher education advocacy groups, postponing implementation of the rule while the litigation proceeds. The rule had been finalized in July after DHS first proposed it in August 2025.
In late August I wrote a Substack on the strange coalition of unions and universities that joined hands and filed suit. Their suit lacks merit in my view, although it would not be accurate to say the rule has no effect on legitimate foreign students. The rule would replace the longstanding “duration of status” framework for F and J nonimmigrants with fixed periods of admission—generally no longer than four years—and create an extension-of-stay process for individuals whose academic programs or authorized activities extend beyond their admission period.
That framework could also affect some students pursuing OPT or STEM OPT when their authorized training extends beyond their fixed period of admission, potentially requiring an extension-of-stay filing rather than allowing their status to continue solely under the existing duration-of-status system. Given this, it is hoped the Trump administration will appeal.
Cracking Down On CPT
DHS cracked down on Curricular Practical Training (CPT), as evidenced by an announcement by the University of California San Diego’s International Services and Engagement Office (ISEO) to temporarily suspend CPT issuance. They cited recent policy updates by DHS’s Student and Exchange Visitor Program. The UC system is not alone. Other colleges such as Harvard, Yale, Princeton, and Penn have also suspended their CPT programs.
According to an article in The Pie News:
“In two broadcast messages on August 12 and August 24, the administration doubled down on the fact that CPT—the program allowing international students to take internships and work placements in the US—must only be granted “where training is an integral part of an established curriculum.’”
“This means that all students—foreign and American—are required to participate in practical training if they are enrolled in an established curriculum where practical training is integral,” clarified DHS.
This will be a big hit to foreign students enrolled in illegitimate degree programs and the colleges that pitched a job while in school.
DOJ Putting American Citizens First
Since the Justice Department relaunched its “Protecting U.S. Workers Initiative” in 2025, Assistant Attorney General Harmeet Dhillon’s office has maintained a steady stream of citizenship-status discrimination settlements and enforcement actions.
For instance, last month DOJ reached a $3.2 million settlement with OpenAI and its subsidiary Statsig over allegations that they discriminated against U.S. workers during recruitment associated with the PERM process. The settlement consists of $1.2 million in civil penalties and a $2 million back-pay fund for affected workers. DOJ alleged that the companies imposed additional application burdens on U.S. workers during PERM recruitment that were not used during ordinary recruitment.
DOJ has also sued Cloudera, alleging that the company designed a separate PERM recruitment process that deterred or prevented U.S. workers from applying for positions earmarked for workers on temporary visas.
There have separately been reports of heightened federal scrutiny involving Cognizant’s immigration practices (DOL suspended all new PERM labor certification filings for the company), although no publicly announced DOJ action currently confirms an investigation specifically for “Green Card violations.”
Incoming $100,000 Optional Practical Training Fee
And speaking of rumors, there is now a confirmed regulatory development involving OPT fees. ICE submitted a proposed rule titled “Optional Practical Training Fees” (RIN 1653-AB01) to the White House Office of Information and Regulatory Affairs in August, and OIRA completed its review on September 11. The proposed rule itself has not yet been published, but it is only a matter of time before the actual regulatory text appears.
Ending H-4 EAD?
Although this remains an agenda item on the part of DHS, there is a proposal (RIN 1615-AD14) to remove work authorizations from certain spouses of H-1B workers here on H-4 visas. No proposed rule text has been published, and the Unified Agenda currently lists the NPRM date as “To Be Determined.” Hope springs eternal!
Conclusion
The public furor over employment visas is not going away. It is actually getting louder and is a central plank in the America First platform. To date, the results have been mixed. It is easy to get angry with the pace of change, but real progress is being made, and that can’t be discounted. No one said this would be easy. The changes and reforms we want to see are opposed by numerous, powerful entities.
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