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U.S. BUSINESS IMMIGRATION UPDATES
A Note From Managing Partner, David Z. Brown:
Reading the below stories and also being keenly aware of what has previously been proposed and is likely to be proposed in the near future, this Administration is focused on using “waste, fraud, abuse” as a pretext to dramatically alter the landscape of our existing system of work authorized visas and eligibility for permanent residence through familial relationships.
As a firm we will continue to advocate for all of our clients, and we will push back on dangerous policy through comments to proposed rules, through the finding of representative plaintiffs, and through the support of efforts to litigate. Immigration is a unique strength that America has for generations recognized; it fosters diversity, economic vitality, and brings significant cultural gifts and we are committed to supporting the overwhelming benefit that immigrants bring.
Where we think our clients can play a part, we will be sure to reach out. We also welcome those who are interested in being involved in advocacy efforts to contact us at info@brownimmigrationlaw.com. We will continue to share our comments and other advocacy efforts on LinkedIn so that our clients and community can stay informed and follow along.
ICYMI: DHS Proposes $103,265 Fee for H-1B Cap-Subject Petitions
On August 25, 2026, DHS published a proposed rule in the Federal Register that would add a new $103,265 fee to all H-1B cap subject petitions, including those filed under the advanced degree exemption. The fee would be in addition to all existing filing fees and would not apply to cap exempt H-1B petitions, such as those filed by universities and certain nonprofit or governmental research organizations. DHS states the fee is intended to help recover the government’s costs of administering the broader immigration system. The rule is not yet final, and public comments are open for 30 days following publication.
For more information, please visit our Trending Topics page.
DHS Rescinds Public Charge Regulation, USCIS Issues New Guidance
On July 16, 2026, DHS announced a final rule rescinding the 2022 public charge inadmissibility regulations, effective September 18, 2026. On August 18, 2026, USCIS issued corresponding guidance in the USCIS Policy Manual explaining how officers will evaluate public charge inadmissibility for adjustment of status applicants going forward. For benefits received before September 18, 2026, USCIS will continue to consider only public cash assistance for income maintenance and long-term institutionalization. For benefits received on or after that date, USCIS may consider a broader range of public benefits as part of the totality of the circumstances. There is no bright line test, and each case will be evaluated on its own facts. We will continue to monitor how this guidance is applied in practice.
First Circuit Denies Stay in $100,000 H-1B Fee Case
On July 24, 2026, the First Circuit Court of Appeals denied the government’s motion to stay a district court ruling that had vacated the $100,000 H-1B fee imposed under Presidential Proclamation 10973. The district court found in June that the fee exceeded the government’s statutory authority. As a result, the $100,000 fee remains vacated while the government’s appeal proceeds on the merits. We will continue to track this litigation, as well as related cases pending in other jurisdictions. The current USCIS I-129 page indicates:
“On June 8, 2026, the U.S. District Court for the District of Massachusetts issued an order that vacated agency guidance implementing the $100,000 payment requirement for certain H-1B petitions. See State of California v. Mullin, 1:25-cv-13829 (D. Mass.). DHS strongly disagrees with the court’s order and filed a motion to stay pending appeal with the United States Court of Appeals for the First Circuit (First Circuit). The District Court order was administratively stayed while the government pursued its motion to stay pending appeal with the First Circuit. On July 24, 2026, the First Circuit denied the government’s motion. DHS strongly disagrees with the First Circuit’s order denying the stay request but will comply with the court’s order while DHS considers next steps. If this order is later lifted, DHS still plans to collect the payment.”
Trump Administration Considers $100K Fee for International Students on OPT
According to multiple media reports, the administration is considering a $100,000 fee tied to Optional Practical Training, the program that allows eligible F-1 students to work in the United States for a period after graduation. It remains unclear whether the fee would be imposed on students, universities, or employers, and no proposed rule has been published. We recommend treating this as a developing story rather than a final policy and will provide updates as more concrete details emerge.
We are continuing to monitor the program for Department of State announcements, including the publication of a participating post list and other program updates. We will provide additional guidance as the Department of State confirms participating consulates.
DHS Detentions Increase at Airports
We are seeing a growing number of reports of foreign nationals detained by ICE at U.S. airports while traveling domestically between states, even where they held a pending application and were otherwise in a period of authorized stay. This does not seem to apply to those in a currently valid immigration status (with a currently valid I-94 record, lawful permanent residents, or U.S. Citizens) based on reports. Foreign nationals whose underlying nonimmigrant status has expired, even if a later filed application remains pending, should carefully weigh the risks of domestic air travel and should carry all relevant immigration documentation if travel is needed. We recommend reviewing our Guidance for Interactions with ICE and contacting your BIL attorney if you have any questions.
DHS Considers Potential Changes to H-1B Program and Nonimmigrant Worker Rules
On August 28, 2026, DHS reportedly cleared OMB review of a proposed rule that would eliminate the discretionary 60-day grace period currently available to certain nonimmigrant workers, including E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN workers, and their dependents, following termination of sponsored employment. The text of that proposal has not yet been published, and the current 60-day grace period remains fully in effect.
Separately, DHS is also considering proposed changes to the H-1B program. The anticipated proposal would address eligibility for cap exemptions, increase scrutiny of employers that have violated program requirements, and strengthen oversight of third-party placements, among other provisions. According to DHS, the changes are intended to improve the integrity of the H-1B program and protect U.S. workers’ wages and working conditions.
Proposals addressing both the 60-day grace period and the H-1B program are expected in the near future. We will provide further updates once the proposals are published and the details are available for public comment.
Court Strikes Down 75-Country Immigrant Visa Ban as Unlawful Nationality Discrimination
On August 21, 2026, a federal judge in the Southern District of New York vacated a State Department policy that had suspended immigrant visa issuance to nationals of 75 countries since January 2026. The court found that the policy improperly used nationality, rather than individualized review, to deny visas, in violation of the Immigration and Nationality Act’s prohibition on nationality-based discrimination in visa issuance. The ruling also set aside visa denials that were based solely on the policy. The government may appeal, and consulates have not yet issued guidance on how affected cases will be handled going forward.
DOS Pauses Immigrant Visa Interviews Worldwide
Shortly after the ruling above, the State Department announced a pause on immigrant visa interview appointments at U.S. embassies and consulates worldwide, reportedly to retrain consular officers on public charge procedures. Affected applicants who had immediate and near future interviews received cancellation notices; cancelled interviews will be rescheduled, though DOS has not announced when normal scheduling will resume. This pause applies to immigrant visa interviews only and does not affect nonimmigrant visa categories such as tourist, business, or student visas. We will monitor for further guidance from the Department of State.
DOS Issues Proposed Rule on Changes to Exchange Visitor Program Termination Requirements
On July 30, 2026, the State Department published a proposed rule that would revise the conditions under which a sponsor must terminate an exchange visitor’s J-1 program, and the circumstances under which DOS may terminate a program on its own authority. The proposed rule would also update the extension of program and reinstatement processes to reflect current SEVIS functionality, add definitions for unauthorized employment and valid program status, and eliminate the separate extension of program provision for au pairs. Public comments on the proposed rule are due by September 28, 2026.
September 2026 Visa Bulletin
The Department of State has released the September 2026 Visa Bulletin. Final action dates for EB-1, EB-2, EB-3, and EB-5 are unchanged from August for all countries, with the exception of EB-4, which advanced two months to December 15, 2022, for all countries. USCIS has confirmed that employment based adjustment of status applicants must continue to use the Final Action Dates chart in September. The Department has cautioned that the EB-2 category for all countries, EB-1 for India, and the EB-5 unreserved category could become unavailable before the fiscal year ends on September 30, 2026, if demand continues to increase.
CANADIAN IMMIGRATION UPDATES
Canada Extends Grace Period for LMIA-Based Work Permit Applications
Canada has introduced a welcome change for employers and foreign workers navigating the Temporary Foreign Worker Program (TFWP). Effective August 21, 2026, Immigration, Refugees and Citizenship Canada (IRCC) has extended the period allowed for certain in-Canada work permit applicants to provide a positive Labour Market Impact Assessment (LMIA) after filing their work permit application. The grace period has increased from 60 days to 90 days.
What Changed?
This change applies through Canada’s concurrent processing policy, which allows eligible foreign workers to submit a work permit application before their employer receives a final LMIA decision. Previously, applicants had 60 days after filing to provide proof of a positive or neutral LMIA. Under the new policy, applicants now have 90 days to submit the LMIA, providing additional flexibility while Employment and Social Development Canada (ESDC) processes the employer’s application.
What This Means for Employers and Employees
For employers, this update provides an important safeguard against processing delays. LMIA applications can take several months to complete, and workers approaching the expiry of their current work permits may otherwise face interruptions to their employment. The extended 90-day window reduces the risk of qualified employees falling out of status or losing authorization to work while awaiting an LMIA decision.
The policy is particularly useful for employers seeking to retain existing foreign workers whose permits are nearing expiry. By allowing eligible workers to submit their work permit application before the LMIA is finalized, employers may be better positioned to avoid workforce disruptions and maintain business continuity. Applicants who file before their current permit expires may also benefit from maintained status, allowing them to continue working under their existing conditions while their application is processed.
While this extension offers additional flexibility, eligibility for concurrent processing remains limited. Generally, the worker must be in Canada, their current work permit must be close to expiry, and the employer must already have submitted a complete LMIA application that is still pending.
Planning Ahead
Employers with upcoming LMIA-based renewals should continue to plan well in advance, but this change provides valuable additional time for those affected by lengthy processing times. We recommend reviewing upcoming work permit expiries and LMIA timelines to determine whether this new policy may benefit members of your workforce.
British Columbia Issues Largest High-Economic-Impact Draw of 2026
British Columbia recently conducted its largest provincial nomination draw of 2026, issuing 602 invitations through the BC Provincial Nominee Program (BC PNP) under its “Innovate: High Economic Impact” category. The draw targeted candidates who can demonstrate strong economic value to the province, either through high earnings or exceptionally competitive registration scores.
Why is This Draw Significant?
Of the 602 invitations issued, 337 invitations were allocated to candidates holding TEER 0–3 job offers with wages of at least $55 per hour (approximately $110,000 annually). The remaining 265 invitations were issued to candidates with registration scores of at least 132 points. The draw reflects British Columbia’s continued emphasis on attracting highly skilled workers who can contribute to economic growth and address labour market needs.
The timing of this draw is particularly notable. Earlier this month, British Columbia announced that it had received an additional 1,000 provincial nomination allocations, increasing its total nomination quota for 2026 to 6,254 spots. This additional capacity appears to be supporting larger invitation rounds and improving opportunities for highly qualified candidates.
What This Means for Employers
For employers, this draw reinforces British Columbia’s growing focus on high-impact talent and competitive compensation. Candidates with strong registration scores and wages significantly above provincial benchmarks continue to receive priority consideration. Employers seeking to retain foreign national employees should take note that wage levels are playing an increasingly important role in provincial nomination selection decisions.
Organizations with employees in British Columbia who are pursuing permanent residence may benefit from reviewing compensation structures, registration scores, and overall immigration strategies to determine whether individuals may qualify under future provincial draws. The province’s approach also aligns with broader immigration trends across Canada, where governments are increasingly prioritizing highly skilled, high-earning workers.
As British Columbia continues to refine its immigration system under the “Care, Build, Innovate” framework, employers should expect nomination opportunities to remain closely tied to economic impact, labour market contribution, and workforce planning needs. We recommend proactively assessing employees’ eligibility to ensure they are positioned competitively for future draws.
