End-of-Summer Immigration Briefing: Recent Developments and Employer Considerations

Current as of Sept. 21, 2026. Immigration policy, agency guidance, and litigation remain subject to change.

The summer of 2026 has seen a significant number of changes in U.S. immigration-related rules, enforcement, and practices. Below is a recap of recent developments and practical action items for employers to consider.

·         DHS has proposed eliminating the 60-day grace period for H-1B and other workers. U.S. Department of Homeland Security (DHS) published a proposed rule on Sept. 11, 2026 that would eliminate the discretionary grace period of up to 60 consecutive days, or through the end of the authorized validity period if shorter, for certain nonimmigrant workers and their dependents after employment ends. The proposal would affect E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN classifications. It is not currently effective, and written comments are due Nov. 10, 2026. The proposal does not specify an immediate effective date because DHS would first need to review comments and issue a final rule. A final rule could be changed, delayed, withdrawn, or challenged in litigation. Employer considerations: Review separation, reduction-in-force, and hiring protocols now, and consider submitting a comment. A final rule could require immediate immigration-strategy decisions upon a termination and could affect the availability and timing of new hires who recently lost employment.

·         F-1 and J-1 duration of status remains in place while litigation continues. DHS published a rule that would replace duration-of-status (“D/S”) admission for F-1 students and J-1 exchange visitors with fixed admission periods, among other changes. The rule was scheduled to take effect Sept. 15, 2026, but a federal court preliminarily enjoined implementation on Sept. 14. The current rules and duration-of-status framework remain in place as of Sept. 21. Employer considerations: Continue to monitor F-1 and J-1 status, CPT, OPT, STEM OPT, and H-1B planning, while monitoring for further updates on the litigation and any future agency guidance. A future change could affect travel, extensions, and change-of-status planning.

·         AP travel now requires individualized unlawful-presence analysis. The Board of Immigration Appeals (BIA) held in Matter of Delcarmen-Lara, issued Aug. 13, 2026, that a departure under advance parole (AP) is a departure for purposes of the unlawful-presence inadmissibility ground and overruled Matter of Arrabally and Yerrabelly. The decision may materially affect individuals who accrued unlawful presence before travel and who previously believed AP travel would not trigger a three- or 10-year bar. Employer considerations: Do not treat AP as routine travel authorization for employees with possible unlawful-presence exposure. Counsel should evaluate the employee’s particular facts before departure

·         USCIS Tightens RFE and NOID practices and shortens response period. USCIS updated its Policy Manual on Aug. 5, 2026, effective immediately, to give Officers full discretion to deny a petition or application outright, without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID), where the filing lacks required initial evidence or does not establish eligibility. Officers may also set RFE and NOID response periods as short as 30 days rather than provide the former expected maximum of 84 days. Employer considerations: Work with counsel to file employment-based petitions with all required initial evidence and supporting documentation. Avoid filing strategies which assume that missing evidence can be provided later through an RFE. Be aware of the need to respond to RFEs within significantly shortened timeframes and work closely and responsively with counsel.

·         USCIS may require electronic filing for more benefit requests. An Aug. 11 DHS interim final rule creates a framework under which USCIS can designate particular immigration benefit requests for mandatory electronic filing. The rule itself does not make any form mandatory to e-file. Before requiring electronic filing, USCIS must make the form available online for at least 180 days, announce the change on its website, and provide at least 60 days’ notice. Employer considerations: Employers should stay tuned for updates on USCIS’ mandatory e-filing designations per case type, and be prepared to pivot under counsel’s guidance as needed. 

·         Documentation, registration, and domestic travel remain enforcement priorities. Registration, proof-of-registration, and address-update obligations remain important for noncitizens. Form G-325R may be required in some circumstances, but registration does not create lawful immigration status and may require individualized legal advice. For domestic travel, foreign national employees should carry on their person the documentation appropriate to their circumstances, such as unexpired foreign passport, most recent I-94, approval notice, employment authorization document (EAD), and evidence of a timely filed extension or change-of-status request, if still pending. Employer considerations: Maintain appropriate work-authorization and status-document tracking, but limit immigration-information requests to those necessary for a lawful business purpose. Remind employees that the expiration date on the most recently issued I-94, rather than visa-stamp expiration date, generally controls the period of authorized stay.

·         Immigrant-visa processing is temporarily paused, and public-charge scrutiny may increase. The U.S. Department of State (DOS) has temporarily paused immigrant-visa interviews worldwide while Consular Officers receive training on revised public-charge guidance. The pause affects immigrant visas (IVs), including employment-based cases processed abroad, but does not affect nonimmigrant visa (NIV) appointments such as H-1B, L-1, or F-1. DOS has not announced a date for normal IV interview scheduling to resume. Separately, revised public-charge standards may increase the importance of documentation showing stable employment, compensation, and financial resources in adjustment of status (AOS) cases. Employer considerations: Identify employees with anticipated IV interviews or consular-processing milestones in the next 60 to 90 days, expect delays to IV completion and start-date planning, and consider whether AOS may be an option for eligible employees who are in the U.S.

·         Form editions and PP timing require careful consideration. USCIS form editions and filing instructions may change with little or no transition period. In addition, premium processing (PP) remains useful for time-sensitive cases, but employers should be aware of continuing delays in USCIS’ PP program, particularly for H-1B and O-1 petitions. USCIS has not consistently met PP deadlines this year; practitioners report that some refunds are being granted as required by regulation. Employer considerations: Partner with counsel that verifies the current form edition, filing instructions, and available filing method immediately before every submission. File time-sensitive cases early, track premium-processing clocks and notices, and develop contingency plans for employees approaching the end of their current work authorization.

This briefing is intended for as general information and is not a substitute for individualized legal advice.