As we close out an unprecedented year in immigration, our December webinar explored the most significant policy changes of 2025 and what employers should prepare for in 2026. From proposed H-1B reforms to evolving student pathways, green card restructuring, and heightened enforcement activity, this recap highlights the key insights shared by Matthew Hellrung and Senior Counsel Michael Turansick. Check out the full recording and see our QA recap.

Stay ahead by subscribing to our newsletter

---

⚖️ Disclaimer: The information below reflects our understanding of U.S. immigration policy as of early December 2025. Rules are changing frequently and are subject to litigation. This QA is for informational purposes only and is not legal advice. For case-specific guidance, please contact Meltzer Hellrung.

---

1. What were the biggest immigration trends in 2025, and what do they mean for 2026?

2025 was one of the most active years in recent memory for immigration changes.

• The first half of 2025 focused heavily on border and removal issues.
• The second half shifted to legal, employment-based immigration—H-1B, students/OPT, and green cards.
• National security, domestic labor market impact, and upcoming midterm elections are all driving policy changes.

For employers, this means:

• More scrutiny on compliance (H-1B, wages, site visits, data consistency across filings).
• Potential new fees and higher prevailing wages.
• Shorter timelines to respond and adjust programs as rules and lawsuits play out.

We expect 2026 to be even more intense on the corporate immigration side, with new regulations proposed and challenged throughout the year.

2. Will the proposed H-1B wage-weighted lottery affect the 2026 cap season?

We do not expect the wage-weighted selection rule to apply to the upcoming H-1B cap season for FY 2027 (filed in March/April 2026).

Here’s why:

• The rule was proposed in September 2025.
• A final rule must be published and then there is typically a 60-day period before it can take effect.
• Litigation is expected immediately once the final rule is published, with strong chances of an injunction from courts that have historically pushed back on rulemaking that goes beyond the statute.

Our headline view:

• Employers should plan for the 2026 cap season under the current “random” lottery rules, while watching closely for developments.
• 2026 may actually be an unusually favorable year for lottery selection rates, because uncertainty could scare some employers away from filing at all.

3. How would the H-1B wage-weighted selection rule work if it is implemented later?

Under the proposal, H-1B cap registrations would no longer be purely random. Employers would have to:

• Identify a proposed wage level (1–4) tied to the LCA’s SOC code and work location.
• The higher the wage level, the more “entries” that registration would get in the lottery.

For example (based on the proposal):

• Level 1 → 1 entry
• Level 2 → 2 entries
• Level 3 → 3 entries
• Level 4 → 4 entries

The concern:

• Many H-1B candidates, especially recent graduates on F-1 OPT/STEM OPT, are legitimately at wage level 1 or 2.
• A weighted system could disadvantage entry-level talent, even when their roles are clearly specialty occupations.

We expect this rule to be heavily litigated if finalized.

4. What is the $100,000 H-1B fee, and who would it apply to?

The $100,000 fee is a presidentially-directed fee that would apply in limited situations:

• It targets new H-1B petitions for beneficiaries outside the U.S. who do not currently hold valid visas.
• It is not intended to apply to:
  • In-country changes of status or extensions, or
  • People already maintaining valid nonimmigrant status in the U.S.

As of December 2025:

• The fee technically “took effect” in late September 2025 on paper,
• But it has not been broadly implemented. A few Requests for Evidence (RFEs) have referenced it for cases filed in a gray period before formal guidance, but it is not being consistently applied.

Our legal assessment:

• We view the fee as legally vulnerable and likely unlawful.
• Multiple lawsuits (including from the U.S. Chamber of Commerce) are challenging it.
• We do not expect it to survive long-term.

5. Is the $100,000 H-1B fee likely to apply to our 2026/2027 cap cases?

Our current prediction:

• The litigation has a strong chance of producing an injunction that blocks the fee.
• Even if the government pushes hard to apply it to FY 2027 cap cases (filed April 2026), we believe courts are likely to halt or limit implementation.

What you should do in the meantime:

• Prefer in-country changes of status wherever possible—those are outside the fee structure.
• Review immigration history carefully for prior status violations, because those could force someone into a consular process (and therefore potentially into the fee regime if it survives).
• Build contingency plans but expect litigation to shape the outcome before the fee ever meaningfully hits cap-season hiring.

6. How should employers plan for the 2026 H-1B cap season?

Key planning points:

1. Treat 2026 as a potentially “best window” for entry-level hires.
   • Weighted lottery rules are unlikely to apply yet.
   • The $100,000 fee is unlikely to be enforced for cap cases (and would not apply to in-country changes of status anyway).
   • Some employers may sit out due to confusion, potentially raising your odds of selection.
2. Tighten compliance now.
   • Clean up LCA public access files (PAFs).
   • Ensure I-9 records are accurate and consistent with visa and petition data.
   • Inconsistencies may be easier for agencies to find given increased data-sharing and AI tools.
3. Think strategically about wages and locations.
   • Even before any weighted rule, wage levels matter for compliance and risk.
   • Evaluate whether higher wages or alternative locations could support long-term H-1B and green card strategies.

7. What changes are expected for F-1, J-1, and OPT/STEM OPT?

The administration’s regulatory agenda includes proposals that would narrow student pathways, especially OPT/STEM OPT:

• The current USCIS Director has been publicly skeptical of OPT and its consistency with the statute.
• A forthcoming rule is expected to:
  • Shorten or eliminate STEM OPT,
  • Narrow the list of eligible majors,
  • Increase employer oversight, audits, and training-plan requirements, and
  • Potentially remove certain tax benefits for F and J students.

We expect:

• A notice of proposed rulemaking with a short comment window (e.g., 30 days).
• Significant litigation and likely delays in full implementation.
• Strong opportunities for employers and universities to comment and explain the talent impact.

Action item for employers:

• Track F-1/J-1 and OPT/STEM OPT developments closely and be ready to pivot to H-1B or other options sooner if these pathways are narrowed.

8. What is happening with the proposed “fixed duration” rule for F-1 and J-1 (D/S)?

Currently, many F-1 and J-1 records are admitted for “duration of status” (D/S) rather than a fixed end date.

A proposed rule would change that by:

• Replacing “duration of status” with a fixed period of admission (e.g., a specific number of years), and
• Layering in more technical status-maintenance requirements and extensions.

As of December 2025:

• We have not seen a final rule issued.
• A reasonable expectation is that the government may try to have this in place for a future academic year, but timing is uncertain.
• Any final rule will be subject to litigation, potentially delaying or blocking implementation.

9. Are changes coming to employment-based green card categories (EB-1, EB-2, EB-3)?

Yes, a regulatory overhaul of employment-based green cards is on the DHS agenda, particularly for:

• EB-1 Extraordinary Ability and EB-1B Outstanding Professors/Researchers,
• EB-2 National Interest Waiver (NIW), and
• Degree requirements and standards in EB-3.

The goals of the proposals appear to include:

• Raising evidentiary standards for EB-1 and NIW.
• More detailed proof of national benefit, impact, and sustained achievements.
• Narrower interpretations of what counts as a qualifying degree or experience for EB-3 professionals.
• Expanded guidance around successor-in-interest, ability to pay, bona fide job offers, and site visits.

We expect:

• Proposed rules sometime in 2026.
• Litigation focused on whether DHS is staying within the plain language of the statute.
• Increased scrutiny, especially for green card paths that avoid the PERM labor market test.

10. What does “accelerate sponsorship timelines” mean in this context?

Many companies have internal policies that say, for example:

• “We start green card sponsorship after 1–2 years of employment.”

Given the anticipated tightening of EB-1, EB-2, and EB-3 rules:

• It may be advantageous to start sponsorship earlier than your standard policy when you already know you will sponsor.
• Petitions filed before new rules take effect are generally adjudicated under the old rules.

In practical terms, “accelerate sponsorship timelines” means:

• Reviewing your sponsorship policy for exceptions and
• Considering earlier initiation for critical employees so they fall under the current regulatory framework rather than a stricter future one.

11. Will there still be a Diversity Visa (green card) lottery?

As of the webinar date:

• The Diversity Immigrant Visa lottery still exists.
• There have been periodic attempts to eliminate it, particularly under prior Trump-era proposals, but no current change has taken effect.

We have not seen any concrete movement to abolish the Diversity Visa lottery, though it could resurface on policy wish-lists.

12. What is the “Trump Gold Card,” and how might it affect our employees?

The “Gold Card” is a proposed program that would:

• Grant permanent residence to foreign nationals who make a large “gift” to the U.S. government (e.g., $1M per person, or higher corporate amounts).
• Use a new petition form (I-140G) and designate the “gift” as the key eligibility factor.

Key concerns:

• The proposal appears to draw visa numbers from existing EB-1/EB-2 categories, rather than creating new numbers.
• That would lengthen wait times for individuals already in those queues.
• Implementation details (what category, how it fits into EB-1A/EB-2 NIW, etc.) are unclear and would require further regulation.

We expect:

• Heavy litigation if the Gold Card siphons visas from people who have been “waiting in line” for years.
• Continued uncertainty until DHS publishes final rules and guidance.

13. What is Project Firewall, and how does it affect H-1B employers?

Project Firewall is a Department of Labor (DOL) enforcement initiative that focuses on:

• Prevailing wage compliance (H-1B, H-1B1, E-3),
• Public Access File (PAF) maintenance, and
• Misclassification or misuse of H-1B and related workers.

What’s different:

• Historically, many DOL reviews were complaint-driven.
• Project Firewall contemplates proactive investigations, including data-driven audits of employers or industry sectors.
• DOL efforts may be coordinated with ICE (I-9 audits) and USCIS fraud detection (FDNS site visits).

Realistically, the intensity of enforcement will depend on:

• Budget allocations (how much funding Congress gives for these initiatives), and
• Agency staffing and priorities.

14. What should employers be doing now about LCA Public Access Files (PAFs)?

We strongly recommend:

1. Confirm you have a PAF for every LCA filed, even revoked LCAs.
2. Ensure each PAF contains all required elements, such as:
   • Certified LCA,
   • Wage rate and system used to set it,
   • Prevailing wage documentation,
   • Summary of benefits,
   • Evidence of posting/notice,
   • Lists of workers if the LCA covers multiple employees, etc.
3. Organize PAFs in a way that matches how your LCAs are filed.

Our preference:

• Separate PAF per employee/position whenever possible. This makes it easier to respond to a targeted audit that focuses on a particular person or location.

15. Should PAFs be kept electronically or physically?

Electronic is generally best.

We recommend:

• Maintaining electronic PAFs in a secure, backed-up system (often cloud-based).
• This protects against physical loss (fire, flood, office closure) and makes it much easier to:
  • Search,
  • Sort by employee or location, and
  • Produce files quickly for audits.

You can also keep physical copies if you prefer, but electronic storage is our strong recommendation.

16. What is the $250 visa integrity fee, and when will it apply?

The $250 visa integrity fee:

• Technically took effect at the start of the federal fiscal year on October 1, 2025.
• Applies to visa issuance at U.S. consulates abroad (i.e., when a visa is stamped into a passport).
• Does not apply to petitions filed with USCIS inside the U.S.

However:

• As of December 2025, implementation has been delayed because the government has not finalized procedures for collecting and refunding the fee.
• The fee is supposed to be refundable if the visa holder fully complies with the terms of their admission, which raises complex administrative issues.

We expect:

• A concerted push to begin collecting this fee in early 2026, likely through consular payment channels such as pay.gov or similar systems.

17. If employees travel for visa stamping, who pays the $250 fee, and is it refunded?

Under the statute:

• The fee is paid per visa application at the consulate.
• Refunds are supposed to be available if the individual complies with all terms of their status.

Practical reality:

• The U.S. government has historically been much better at collecting money than refunding it.
• We expect refund processes to be slow and administratively difficult, at least initially.

Who pays?

• There is no hard legal requirement that the employer reimburse this fee.
• Many employers will make a business decision—for example:
  • Covering the fee as part of a mobility program, or
  • Leaving it to the employee where the travel is primarily for personal reasons.

Policy decisions should be made consistently and documented in your internal immigration policy.

18. Are prevailing wage levels likely to increase, and can we use alternate wage surveys?

Yes, wage levels are in the crosshairs again.

• The administration is considering raising prevailing wage levels (Level 1–4) for H-1B, H-1B1, E-3, and PERM.
• A prior Trump-era rule that did this was struck down on technical grounds, not on substance. That text could be recycled, updated, and re-proposed.

If a new wage rule is implemented:

• Entry-level Level 1 wages could be pushed closer to the median wage for that occupation.
• Higher levels could be pushed closer to the top percentiles, increasing costs for employers.

Alternate wage surveys:

• In many cases, employers may still be able to use alternative wage surveys that meet DOL criteria.
• These have been narrowed over the years, but they remain a critical tool if government wage levels become unworkably high.

We expect:

• Increased use of alternate surveys if wage levels spike, and
• A likely “cat and mouse” dynamic where DOL revises its guidance in response.

19. How is DHS using AI and data sharing in enforcement?

Agencies are increasingly:

• Sharing data across DHS, DOL, and the Department of State, and
• Using AI tools to identify discrepancies and patterns.

Examples include:

• Comparing job duties, titles, and locations across prior non-immigrant petitions, PERM applications, and green card filings—sometimes separated by 7–8 years.
• Using tools (including mobile applications like Mobile Fortify) to perform real-time identity and status checks using facial recognition and biometrics.

There are serious privacy and constitutional questions here (e.g., around “digital stop-and-frisk” scenarios). Advocacy groups and the immigration bar are watching these technologies closely to ensure agencies do not outsource legal judgment to algorithms.

For employers, this means:

• Consistency matters more than ever. Ensure that positions, duties, wages, and locations match across petitions and internal HR data.
• Be prepared for RFEs that reference old filings you may not have looked at for years.

20. Do public comments on proposed rules actually matter? Is it worth participating?

Yes—more than it may feel like.

• Under the Administrative Procedure Act (APA), agencies are legally required to review and respond to all substantive comments on a proposed rule.
• Large comment volumes can:
  • Slow down implementation,
  • Force agencies to refine or withdraw provisions, and
  • Create a record for future litigation (demonstrating that impacts on employers and workers were raised and ignored).

That said:

• Individual comments can feel like “shouting into the void,” which is why we strongly encourage coordinated advocacy through:
  • Industry coalitions,
  • Trade groups (e.g., the U.S. Chamber of Commerce), and
  • Professional organizations.

Those organizations often have direct channels to policymakers and can amplify employer concerns beyond what any single company can do.

Want help applying this to your program?

Every company’s risk tolerance, headcount plan, and workforce mix are different.

If you’d like a tailored review of:

• Your H-1B, OPT/STEM OPT, or green card strategy for 2026,
• Your PAF and I-9 compliance posture, or
• How to prioritize cases before new rules and litigation take effect,

please reach out to the Meltzer Hellrung team. We can help you build a practical, data-driven immigration program that navigates these changes while still attracting and retaining global talent.

 

 

 

Scroll to Top ↑