Important Business Immigration Updates for September – F-1 Compliance, H-1B Cap, I-9 Audits & Visa Updates

DHS Proposes $103,265 Fee for H-1B Cap Petitions

The Department of Homeland Security (DHS) has proposed a significant new $103,265 fee for H-1B cap-subject petitions, including petitions for beneficiaries eligible for the U.S. advanced degree exemption. If finalized, the fee would be due at the time of filing and would be in addition to existing H-1B filing fees.

The proposed fee would generally apply to H-1B petitions subject to the annual 65,000 visa cap and the additional 20,000 visas available for individuals with qualifying U.S. advanced degrees. Certain cap-exempt H-1B petitions, including those filed by qualifying institutions of higher education, nonprofit research organizations, and governmental research organizations, would not be subject to the additional fee.

What Employers Should Know: This is currently a proposed rule and is not yet in effect. If finalized, the additional fee could dramatically increase the cost of sponsoring employees through the H-1B cap process. Employers that rely on H-1B professionals should monitor the rulemaking closely and begin considering how a potential fee of this magnitude could affect future immigration budgets and workforce planning.

Federal Court Strikes Down Immigrant Visa Ban Affecting 75 Countries

On August 21, 2026, a federal court vacated the U.S. Department of State’s suspension of immigrant visa processing for nationals of 75 countries, finding that the blanket nationality-based policy exceeded the Secretary of State’s authority and conflicted with federal immigration law. The suspension, which had been in place since January, prevented affected applicants from receiving immigrant visas based largely on their country of nationality and public-charge concerns. The court ruled that immigrant visa applicants must instead receive individualized, case-by-case consideration and also set aside visa refusals that were based solely on the suspended policy.

For employers and foreign nationals pursuing employment-based permanent residence through consular processing, the decision removes a significant barrier for applicants from the affected countries. However, the ruling does not eliminate separate travel restrictions or other visa eligibility requirements, and additional litigation or government action remains possible. Employers with sponsored employees or prospective hires affected by the suspension should review pending immigrant visa cases and continue monitoring developments at U.S. embassies and consulates.

New F-1 Rule Creates New Compliance Deadline for Employers

Beginning September 15, 2026, F-1 students admitted or readmitted to the United States will receive a fixed expiration date on their Form I-94 instead of the longstanding “Duration of Status” (D/S) notation. The new “Admit Until Date” creates an additional immigration-status deadline that employers will need to monitor for F-1 employees working under CPT, OPT, or STEM OPT.

For employers, the biggest change is date tracking. A valid Employment Authorization Document (EAD) will no longer be the only date HR should have on its radar for OPT and STEM OPT employees. Employers should be prepared to monitor the employee’s I-94 Admit Until Date, I-20 program or training dates, EAD expiration date, and applicable extension deadlines. If an employee’s I-94 admission period expires, a facially valid EAD may not, by itself, resolve the employee’s ability to continue working.

Importantly, the rule does not require employers to complete new Forms I-9 for their existing F-1 employees simply because the rule takes effect. Employers should continue following existing Form I-9 and reverification requirements and avoid requesting unnecessary documentation. However, HR teams should begin building an inventory of current F-1 employees and tracking their CPT, OPT or STEM OPT category, current work authorization expiration dates, and any new I-94 issued after September 15.

Employees who were already admitted under D/S before September 15, 2026 are subject to transition rules. Under the rule described in the presentation, these individuals may generally remain in D/S until the applicable program end date or November 14, 2030, whichever occurs first, unless travel and readmission results in issuance of a new I-94 with a fixed date.

What Employers Should Do Now: Use the implementation period to identify all F-1 employees, determine whether each employee is working under CPT, OPT or STEM OPT, and establish a centralized system for monitoring I-94, I-20 and EAD expiration dates. The new rule may not require a new Form I-9 today, but it significantly raises the importance of coordinated immigration and employment-eligibility tracking.

Appeals Court Keeps H-1B Fee Increase on Hold

The U.S. Court of Appeals for the First Circuit has denied the federal government’s request to pause a lower court injunction blocking several H-1B measures, including the proposed $100,000 H-1B filing fee. As a result, employers may continue filing H-1B petitions under the current government fee structure while the litigation continues. The ruling also prevents enforcement of the challenged H-1B entry restrictions for now, providing temporary certainty for employers planning to sponsor foreign talent.

What Employers Should Know:

Although this decision is a positive development for employers, it is not the final outcome. The administration may seek review by the U.S. Supreme Court, and the underlying lawsuit remains ongoing. Employers should continue preparing and filing H-1B petitions under the existing rules while monitoring future court decisions and USCIS guidance, as additional changes to the H-1B program could still occur.

USCIS Confirms FY2027 H-1B Cap Reached – No Second Lottery

U.S. Citizenship and Immigration Services (USCIS) has announced that it has received enough H-1B petitions to meet both the 65,000 regular H-1B cap and the 20,000 advanced degree exemption for fiscal year 2027. As a result, USCIS will not conduct a second H-1B lottery this year. This means employers with unselected registrations will not have another opportunity to secure an H-1B cap number during the FY2027 cycle.

Planning Ahead:

Employers who were unable to secure H-1B selection should evaluate alternative work visa options, such as cap-exempt H-1B employment, L-1, O-1, TN, or E-3 classifications, where applicable. With H-1B demand continuing to exceed available visas, businesses should also begin planning now for the FY2028 registration period by identifying future hiring needs and developing immigration strategies early.

Increased Worksite Enforcement and I-9 Compliance Activity

Federal immigration enforcement activity continues to increase in 2026, with a growing focus on workplace investigations, I-9 audits, and targeted enforcement actions against employers in industries with large workforces. Employers should be prepared for Notices of Inspection (NOIs), site visits, and possible coordination between ICE, DHS, and other federal agencies. Common triggers for investigations may include Social Security no-match issues, inconsistent payroll records, subcontractor compliance concerns, and prior audit history. Employers are encouraged to conduct proactive internal I-9 reviews, update onboarding procedures, train HR personnel, and develop response protocols to minimize operational disruption and legal exposure. To get a customized immigration compliance plan, call the Monty & Ramirez team at 281-493-5529.

Advance Parole Travel Now Carries New Risks

A recent decision from the Board of Immigration Appeals (BIA) changes how international travel using advance parole may affect certain foreign national employees. In Matter of Delcarmen-Lara, issued August 13, 2026, the BIA overturned longstanding precedent and held that departing the United States under advance parole may trigger the 10-year unlawful presence bar for individuals who previously accumulated one year or more of unlawful presence.

Previously, travel with advance parole generally was not treated as a “departure” for purposes of triggering the unlawful presence bars. Under the new ruling, however, future travel may carry significant immigration consequences—even when the employee already has a valid advance parole document that was approved or issued before the decision. The BIA stated that the ruling is not retroactive, so travel that occurred before the new decision generally should not be affected.

Employer Takeaway: Employers and HR teams should encourage foreign national employees using advance parole to consult with immigration counsel before international travel, particularly if there may be a history of unlawful presence. An approved advance parole document should no longer be viewed, by itself, as confirmation that international travel can occur without additional immigration consequences.

September 2026 Visa Bulletin

A. Final Action Dates for Employment-Based Visa Applications

For September 2026, USCIS announced it will use the Final Action Dates chart published by the Department of State.