Over the past year, employers and H-1B professionals have faced a steady stream of new H-1B policies: fees announced by proclamation, rules proposed by federal agencies, and court decisions that have paused or reversed several of them. Keeping track of what is actually in effect is challenging enough, let alone planning for the impact if any of these proposals take effect.
In a recent episode of Statutes of Liberty, attorney host Nick Lowrey spoke with Tim D’Arduini to cover all the potential changes to the H-1B visa program, which was recorded on October 5, 2026. Their conversation separates the policies that are in effect from those that are proposed, blocked, or still under review, and offers practical guidance for employers and H-1B workers preparing for what may come next. The chart below summarizes where each development stands as of that recording date.
Where Each H-1B Action Stands
| Action | Who It Impacts | Status | Notes |
| $100,000 H-1B Entry Fee (Presidential Proclamation) | Employers filing new H-1B petitions for workers outside the U.S. who do not hold a valid H-1B visa. Extensions, amendments, and change of employer petitions for workers already in the U.S. are not impacted. | ❌ Blocked, though extended. | The White House issued an extension through September 21, 2027, which is not currently enforceable while the court order stands, and the government’s appeal is pending. |
| $103,265 Fee for Cap-Subject H-1B Petitions | Employers filing cap-subject petitions (regular and advanced degree cap) after lottery selection. Cap-exempt petitions are not covered. | 🕒 Pending final rule | DHS published the proposed rule in August 2026; public comment period closed September 24, 2026. DHS is reviewing comments, and litigation is expected if the rule is finalized. Could apply in addition to the $100,000 entry fee. |
| Prevailing Wage Increases | Employers filing new Labor Condition Applications and prevailing wage requests for H-1B, H-1B1, E-3, and PERM. | 🕒 Pending final rule | DHS proposed the rule in March 2026; comment period closed May 2026. Would apply prospectively, with advance notice expected before it takes effect. |
| Reforming the H-1B Nonimmigrant Visa Classification Program | Employers placing H-1B workers at third-party client sites; cap-exempt employers, including nonprofit research organizations and their affiliates; employers with prior H-1B violations. | ⏸️ Pending proposed rule | Listed on DHS’s regulatory agenda and under White House review since August 2026. Proposed rule not yet published; a public comment period will follow. |
| H-1B Program Integrity Executive Order | All H-1B sponsors, with particular focus on employers that conducted layoffs in the past year or plan layoffs affecting similarly situated U.S. workers, and on H-1B dependent employers. | ✅ Active | A White House directive to DOL, DHS, and DOS. DOL must begin reviewing previously filed LCAs within 30 days. Implementing guidance is pending, and additional requests for evidence are possible. |
| Elimination of the 60-Day Grace Period | H-1B, H-1B1, E-1, E-2, E-3, L-1, O-1, and TN workers and their dependents whose employment ends. | 📅 Proposed rule | Proposed in September 2026; comments are due by November 10, 2026. The 60-day grace period remains available until a final rule takes effect. |
| Rescission of H-4 Employment Authorization (H-4 EAD) | H-4 spouses of certain H-1B workers, generally those with an approved I-140 or an extension beyond six years, and their employers. | ⏸️ Pending proposed rule | On DHS’s regulatory agenda, but no proposed rule has been published. Current H-4 EAD rules remain in effect. |
What Employers Should Know
The key message for employers is that most of these policies are not yet in effect, and several face significant legal challenges. Rather than reacting to each headline, employers should plan for a range of outcomes. For organizations that register candidates in the H-1B lottery each year, continuing with that approach remains reasonable. At the same time, employers should set expectations with candidates that selection in the lottery does not guarantee a petition will be filed, and consider how staffing needs would be met if new fees take effect.
If both fees were ultimately upheld, an employer petitioning for a cap-subject worker abroad could face more than $200,000 in fees on top of standard filing costs. Employers may consider sharing that business impact with industry associations, government relations teams, and policymakers, since employer perspectives can inform how these rules are shaped.
The new Executive Order adds a different kind of risk for employers. Agencies are directed to consider whether an employer has conducted layoffs in the past year, or has plans for future layoffs, affecting U.S. workers in positions similar to those being filled by H-1B workers. Reviewers may look at WARN Act notices, public reporting, and other layoff disclosures. Layoffs tied to broader restructuring do not automatically bar sponsorship, but they will likely need to be documented and explained.
Key Steps Employers Should Take Now
- Build scenario plans for upcoming H-1B lottery registrations, including staffing impacts if new fees take effect.
- Set clear expectations with candidates about the lottery and whether a petition will be filed.
- Review layoffs from the past 12 months and any planned reductions in force with immigration counsel before filing H-1B petitions for similar roles.
- Review wage levels for H-1B and U.S. workers in comparable roles ahead of a final Department of Labor wage rule.
- Assess third-party placement arrangements and cap-exempt eligibility in anticipation of DHS’s reform rule.
- Encourage H-1B employees to consult counsel before international travel.
What H-1B Workers Should Know
For H-1B professionals, the most immediate practical concern is often international travel rather than eligibility. Long wait times for visa appointments, particularly in India and China, can leave workers who travel without a valid visa stamp unable to return promptly, which can in turn put their employment at risk.
If the 60-day grace period is eliminated, workers whose employment ends could fall out of status immediately. The grace period has only existed for about a decade, and discretionary relief was available before it was created. Klasko recommends that workers, especially those with families, consider having a change of status strategy ready in advance and understand any compelling circumstances that could support a favorable exercise of discretion. H-4 EAD holders should know that their work authorization remains available unless and until a rescission rule is proposed, finalized, and takes effect.
If you have questions about how these H-1B developments may affect your organization or your status, please reach out to a member of Klasko’s Corporate Immigration Practice Group or request a consultation.
Listen to the full episode to learn how you can navigate today’s evolving naturalization landscape. Subscribe to Statutes of Liberty on Apple Podcasts, Spotify, Amazon Music, and JioSaavn.
The material contained in this post does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
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