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

The summer of 2026 has brought a number of immigration developments that warrant employer attention. This recap focuses on immediate workforce planning and compliance considerations.

1.      F-1 and J-1 Duration-of-Status Rule Is Paused by Litigation

U.S. Department of Homeland Security (DHS) published a rule that would replace duration-of-status admission for F-1 students and J-1 exchange visitors with fixed admission periods. The rule was scheduled to take effect on Sept. 15, 2026, but a federal court preliminarily enjoined implementation on Sept. 14, 2026. As of Sep. 18, 2026, the existing duration-of-status framework and other rules pertaining to F-1s and J-1s remain in place.

Employers should continue to monitor F-1 and J-1 status, CPT, OPT and STEM OPT employment authorization, and H-1B planning under the current rules. The litigation and any subsequent agency guidance should be monitored closely because the proposed changes could affect travel, change-of-status planning, and extensions if they later take effect.

2.      Advance Parole Travel 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) constitutes a departure for purposes of the unlawful-presence ground of inadmissibility and overruled Matter of Arrabally and Yerrabelly. The decision may materially affect individuals who accrued unlawful presence before travel, including some individuals who previously believed advance-parole travel would not trigger a three- or 10-year bar.

Employers should not treat AP as routine travel authorization for employees with possible unlawful-presence exposure. International travel should be assessed with immigration counsel on the employee’s particular facts before departure.

3.       USCIS Creates Framework for Mandatory Electronic Filing

DHS published an interim final rule on Aug. 11, 2026 creating authority for USCIS to require electronic filing of immigration benefit requests. No form is mandatory to e-file solely because of this rule. However, the rule permits USCIS to designate a form for mandatory e-filing after it has been available online for at least 180 days, USCIS announces the change on its website, and it gives at least 60 days’ notice. There are 21 form types that already meet the 180-day threshold and are likely to comprise the first wave.

4.       Proposed Elimination of 60-Day Grace Period for H-1B and Other

         Nonimmigrant Workers

DHS published a proposed rule on Sept. 11, 2026 that would eliminate the discretionary 60-day grace period currently available to certain nonimmigrant workers and their dependents following the cessation of employment. The proposal would remove 8 CFR 214.1(l)(2), the provision that currently permits a grace period of up to 60 consecutive days, or until the end of their authorized validity period, whichever is shorter.
The proposal would affect the classifications currently covered by the regulation, including E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN. It is only a proposal and is not currently effective. Employers should nonetheless review separation and workforce-restructuring protocols now, because a final rule could require immediate immigration-strategy decisions when employment ends.

Written public comments for the rule are due by 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.

5.       Immigration Documentation Sees Increased Enforcement Focus

Federal foreign-national registration, proof-of-registration, and address-update obligations remain important compliance considerations for noncitizens who are not already deemed registered. Form G-325R may be required for certain individuals, but registration does not create lawful immigration status. Employees should obtain individualized legal advice before taking registration-related action where status or enforcement concerns may exist.

For domestic travel, employees should maintain readily accessible copies of status documentation that applies to their circumstances, such as a passport, most recent I-94, approval notice, employment authorization document, and evidence of a timely filed extension or change-of-status request when relevant. An I-94 expiration date, rather than a visa-stamp expiration date, generally controls the period of authorized stay.

6.       USCIS Tightens RFE and NOID Practices and Shortens Response

         Periods

USCIS issued an update to its Policy Manual on Aug. 5, 2026, effectively immediately, which changes how Officers handle Requests for Further Evidence (RFEs) and Notices of Intent to Deny (NOIDs). The policy gives Officers full discretion to deny petitions and applications outright, without first issuing an RFE or NOID, when a filing lacks initial required evidence or fails to establish eligibility. Additionally, the policy allows Officers to set deadline of as few as 30 days, rather than permitting the maximum response time of 12 weeks, or 84 days.

7.        DOS Temporarily Pauses Immigrant Visa Interviews Worldwide

The Department of State has temporarily paused immigrant visa interviews worldwide while consular officers receive training on revised public-charge guidance. The pause affects applicants seeking immigrant visas abroad, including employees completing employment-based permanent-residence processing through consular processing. It does not affect nonimmigrant visa appointments, including H-1B, L-1, and F-1 visa appointments.

DOS has not announced a date for normal immigrant-visa interview scheduling to resume. Employers with affected employees should expect delays to immigrant-visa completion, overseas relocation, and start-date planning. Employees already in the United States should consult immigration counsel regarding whether adjustment of status is a viable alternative.

8.        Employer Checklist

• Continue current F-1 and J-1 compliance practices while monitoring litigation and agency developments affecting duration of status.                                                                                                                    

• Review termination and reduction-in-force protocols for affected nonimmigrant workers in light of DHS’ proposal to eliminate the 60-day grace period. Employers should carefully consider how a RIF, layoff, or termination would affect foreign national workers and consider giving workers as much advance notice as possible so that they have a runway for finding a new job, changing status, or departing the U.S.                                                                                                                                              

• Confirm form editions, filing instructions, and available filing methods immediately before every submission.                                                                                                                                                           

• Require case-specific immigration-counsel review before advance-parole travel for any employee with possible unlawful-presence exposure.                                                                                                      

• Maintain appropriate internal tracking for status documents and work authorization, while avoiding requests for immigration information that are not necessary for a lawful business purpose.                          

• Avoid filing strategies that assume missing evidence can be provided later through an RFE.                                                                                                                                                                                   

• Be aware of the potential need to respond to RFEs within significantly shortened timeframes.                                                                                                                                                                                  

• Identify employees with immigrant-visa interviews or consular-processing milestones expected in the next 60 to 90 days, and revisit related relocation and start-date assumptions.

 

This briefing is intended for general employer planning purposes and is not a substitute for individualized legal advice.