U.S. Immigration Alerts

FGI UPDATES: This Week’s Summary of U.S. Immigration News

U.S. Suspends PERM Program for Microsoft and Other Major Technology Companies

The U.S. government announced on October 8, 2026, that Microsoft, Adobe, and several major information-technology companies are being suspended from participating in the Permanent Labor Certification (PERM) program, a key step in the employment-based green card process for many foreign workers. Department of Labor (DOL) Secretary Keith Sonderling stated that the agency will not accept new or process pending PERM applications involving the affected companies, while Vice President JD Vance and other administration officials cited alleged fraud and concerns about the displacement of U.S. workers as the basis for the action.

Key Points

• PERM Program: PERM is the DOL labor-certification process generally required before an employer can file an immigrant petition for a foreign worker in many employment-based green card categories. The process requires an employer to establish that there are no qualified, willing, and available U.S. workers for the position and that employing the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers. 
• Government Rationale: Administration officials cited alleged fraud and concerns that some companies have used foreign workers in ways that displace or disadvantage U.S. workers. The announcement is part of a broader effort by the administration to increase scrutiny of employment-based immigration and encourage employers to hire U.S. workers. 
• Impact on Green Card Cases: Because PERM is an important step for many employer-sponsored green card cases, the suspension could delay or prevent affected companies from initiating new PERM cases and could interrupt cases that are already pending. The precise effect on individual cases will depend on the status of the PERM application and any subsequent agency guidance or legal developments.

What Employers Need to Know

• Immediate PERM Impact: Affected companies should not assume that they can continue filing or obtaining adjudication of PERM applications under the ordinary process. The DOL has specifically stated that it will not accept new or process pending applications involving the identified companies. 
• Existing Green Card Cases: Employers with foreign employees in the PERM process should review cases individually to determine whether the suspension affects recruitment, pending applications, or subsequent I-140 and adjustment-of-status timelines. Cases that have already completed PERM may present different considerations because the labor certification has already been approved. 
• Broader Immigration Planning: Employers that rely heavily on PERM sponsorship should evaluate alternative immigration strategies for affected employees where available. This may include assessing whether an employee qualifies for an employment-based category that does not require PERM or whether an existing nonimmigrant status can be extended while the situation develops. 
• Increased Compliance Scrutiny: The suspension signals heightened DOL scrutiny of employers that use employment-based immigration programs, particularly in the technology and IT-services sectors. Employers should ensure that PERM recruitment, wage, job-description, and documentation practices are carefully reviewed and consistently maintained.

Looking Ahead

• Further Agency Guidance: Vice President Vance stated that the suspensions will remain in place “as long as [they] need to” and that the administration has tools to extend them indefinitely, while signaling that the administration wants the affected companies to change their hiring practices. The DOL may issue additional guidance explaining the scope and duration of the suspensions and how they will affect pending PERM applications. Employers should monitor DOL announcements closely before taking action on affected cases. 
• Expansion of Restrictions: The action may signal additional scrutiny of other employers or industries participating heavily in employment-based immigration programs. Employers should therefore monitor whether similar restrictions are extended to additional companies or PERM filings. 
• Interaction With H-1B Policies: The PERM suspension comes amid broader changes affecting the H-1B program, including the $100,000 H-1B payment requirement (currently blocked by court order), DHS’s proposed $103,265 fee for cap-subject petitions, and a September 2026 executive order directing closer federal review of H-1B filings. Taken together, these developments could create additional challenges for employers seeking to retain foreign professionals through both temporary and permanent employment-based immigration pathways.

The suspension of PERM participation for Microsoft and other major technology companies represents a significant development for employers and foreign workers pursuing employment-based permanent residence. Although the scope and duration of the action remain subject to further agency guidance and potential litigation, affected employers should promptly review pending and planned PERM cases, consider alternative immigration strategies where available, and closely monitor further developments from the DOL and the courts.

Department of Labor updates PERM and PWD processing times for October 2026

The Department of Labor (DOL) has updated its processing times for prevailing wage determinations (PWD) and PERM applications for October 2026: 

• DOL has been processing H-1B prevailing wage determinations (PWDs) filed in June 2026 (OEWS and Non-OEWS), or earlier. 
• DOL has been processing PWDs for PERMs filed in June 2026 (OEWS and non-OEWS), or earlier.
• DOL has been processing H-1B redeterminations filed in August 2026 or earlier. 
• DOL has been processing PERM redeterminations filed in July 2026 or earlier. 
• DOL has been processing PERM Center Director reviews requested in July 2026 or earlier.

PERM Processing Times

Average Number of Days to Process PERM Applications

SOURCE: flag.dol.gov/processingtimes

Federal Court Blocks Agency Implementation of $100,000 H-1B Payment Requirement

On September 30, 2026, a federal district court in California issued an order blocking U.S. Citizenship and Immigration Services (USCIS), U.S. Customs and Border Protection (CBP), and the U.S. Department of State (DOS) from enforcing or implementing policies related to the $100,000 H-1B payment requirement established by Presidential Proclamation 10973 and extended by Presidential Proclamation 11069. In granting a preliminary injunction, the court ruled that the agencies may not implement the proclamation-based payment requirement unless and until they complete notice-and-comment rulemaking under the Administrative Procedure Act (APA) and the analysis required by the Regulatory Flexibility Act. The California decision is the second federal district court ruling blocking the requirement; a separate Massachusetts decision also blocked the payment, although that ruling is currently on appeal.

Key Points

• California Court Order: The September 30 order in Global Nurse Force v. Trump prevents USCIS, CBP, and DOS from enforcing or implementing the proclamation-based $100,000 H-1B payment requirement. The court vacated the agency policies implementing the payment but did not enjoin the proclamations themselves. The order remains in effect unless changed through further court proceedings or agency action. 
• Origin of the Requirement: President Trump established the $100,000 payment requirement through Presidential Proclamation 10973 on September 19, 2025, primarily affecting H-1B workers outside the United States who required consular processing or admission at a U.S. port of entry. Presidential Proclamation 11069, issued September 18, 2026, extended the restriction through September 21, 2027. 
• Second Federal Court Decision: The California ruling follows a separate federal district court decision in Massachusetts that also blocked the $100,000 payment requirement. The Massachusetts decision is currently being appealed before the U.S. Court of Appeals for the First Circuit. 
• APA Requirements: The California court concluded that the agencies could not continue implementing the proclamation-based payment requirement without complying with the APA’s rulemaking requirements. The underlying litigation was brought by a coalition of employers, labor organizations, schools, healthcare providers, religious organizations, and individuals challenging the payment requirement and its implementation.

What Employers Need to Know

• No Current $100,000 Payment: The proclamation-based $100,000 H-1B payment is currently not being enforced, including for H-1B petitions involving workers who will require consular processing or admission to the United States from abroad. Employers therefore are not currently required to pay the $100,000 amount when filing affected H-1B petitions. 
• Separate $103,265 Proposal: Employers should distinguish the blocked $100,000 proclamation-based payment from DHS’s separately proposed $103,265 fee for certain H-1B cap-subject petitions. The $103,265 proposal remains part of a separate rulemaking process, is not affected by the California court order, and is not currently in effect; the comment period closed September 24, 2026, and DHS has not issued a final rule. 
• Continued Monitoring: USCIS currently advises that if the applicable court order is later lifted, DHS intends to collect the $100,000 payment. Employers should therefore continue monitoring the litigation and avoid assuming that the current suspension will necessarily remain permanent. 
• Case Management Conference: The California court has scheduled a case management conference for October 27, 2026, with the parties’ joint case management statement due October 20, 2026. Further proceedings could provide additional guidance regarding the future of the payment requirement.

Looking Ahead

• Potential Appellate Review: The continued litigation could result in additional federal court decisions addressing the legality and implementation of the $100,000 payment requirement. The conflicting rulings and ongoing appeal create the possibility of further appellate review and, potentially, Supreme Court consideration. 
• Changing Requirements: The current prohibition on agency implementation could change if a court modifies or lifts the order or if subsequent litigation produces a different result. Employers should therefore continue evaluating H-1B filing and immigration strategies against the most current agency and court guidance. 
• Separate Rulemaking: DHS’s proposed $103,265 H-1B cap-subject petition fee will continue through a separate regulatory process and could create a distinct financial obligation if ultimately finalized. Because that proposal is independent of the $100,000 payment requirement, the California order does not prevent DHS from continuing that rulemaking. 
• Planning for H-1B Sponsorship: For now, employers can proceed without including the $100,000 proclamation-based payment, while recognizing that the legal landscape remains subject to further developments. Employers sponsoring workers who require consular processing or admission from abroad should pay particular attention to future court and agency announcements.

The September 30, 2026 California federal court order provides employers with immediate relief from the $100,000 H-1B payment requirement by blocking USCIS, CBP, and DOS from enforcing or implementing the proclamation-based requirement. However, because the litigation remains active and the Massachusetts decision is on appeal, the long-term status of the payment remains unsettled, and employers should continue monitoring both the court challenges and DHS’s separate $103,265 proposed H-1B fee.

Lawsuit Challenges Recent USCIS Policies Affecting Adjustment of Status Applicants

On October 5, 2026, a coalition of individuals and organizations filed a federal lawsuit in Massachusetts challenging two recent U.S. Citizenship and Immigration Services (USCIS) policies that make the adjustment of status process more difficult and less predictable for applicants seeking lawful permanent residence in the United States. The first policy, issued in May 2026, directs USCIS officers to treat an applicant’s decision to pursue adjustment of status in the United States rather than immigrant visa processing abroad as a negative discretionary factor, while the second policy, issued in August 2026, gives officers broader discretion to deny applications without first requesting additional evidence. The plaintiffs argue that both policies violate the Administrative Procedure Act (APA), among other legal requirements, and are seeking a preliminary injunction that would temporarily block their implementation while the litigation proceeds.

Key Points

• • May 2026 Adjustment of Status Policy: A USCIS policy that took effect in late May 2026 treats an applicant’s choice to seek adjustment of status in the United States, rather than consular processing abroad, as a negative discretionary factor. The lawsuit argues that this represents a significant departure from decades of USCIS practice, under which adjustment of status was not treated as an unusual alternative to immigrant visa processing. 
  • August 2026 Evidence Policy: A separate USCIS policy that took effect in early August 2026 gives adjudicating officers greater discretion to deny applications that do not initially contain all required evidence or do not initially establish eligibility. Under the prior policy, officers generally were instructed to issue a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) when additional evidence was needed to establish eligibility. 
  • Retroactive Application: Both policies became effective immediately and apply to applications that were already pending with USCIS when the policies took effect. The plaintiffs contend that the changes make adjustment of status more difficult and uncertain and could result in family separation or disruption to applicants’ education and employment in the United States. 
• Legal Challenge: The lawsuit, American Association of University Professors et al. v. U.S. Department of Homeland Security et al., No. 1:26-cv-14527 (D. Mass.), was filed by a coalition that includes foreign nationals, labor organizations, academic organizations, and immigrant advocacy groups. The complaint alleges that the policies violate the APA and other legal requirements, including the APA’s notice-and-comment procedures and the Fifth Amendment Due Process Clause.

What Employers Need to Know

• Policies Remain in Effect: The filing of the lawsuit does not currently prevent USCIS from applying either policy to adjustment of status applications. Until a court issues an injunction or otherwise changes the agencies’ authority to implement the policies, employers and applicants should assume that the policies remain operative. 
• Adjustment of Status Strategy: Employers sponsoring foreign nationals for permanent residence should consider how the May policy could affect cases in which adjustment of status is pursued rather than consular processing. The policy may create additional discretionary concerns for applicants who choose to complete the green card process in the United States. 
• Initial Evidence: Employers and their immigration counsel should place particular emphasis on submitting complete and well-supported adjustment applications at the time of filing. Because USCIS officers now have broader discretion to deny an application without first requesting additional evidence, relying on an RFE or NOID opportunity to cure evidentiary deficiencies may carry greater risk. 
• Pending Cases: The policies also affect applications that were already pending when the respective memoranda took effect. Employers should therefore consider whether pending adjustment cases require additional review or strategic assessment in light of the changed adjudication standards.

Looking Ahead

• Preliminary Injunction: The immediate next step is for the Massachusetts federal district court to consider the plaintiffs’ request for a preliminary injunction. If granted, the injunction could temporarily prevent USCIS from implementing the challenged policies while the broader litigation continues. 
• Potential Permanent Relief: The plaintiffs are also seeking an order permanently vacating and enjoining the policies on the grounds that they are unlawful, exceed USCIS’s statutory authority, violate APA notice-and-comment requirements, and are arbitrary and capricious. The ultimate outcome of these claims remains uncertain because the litigation was only recently filed. 
• Potential Impact on Adjustment Cases: If the policies remain in effect, adjustment of status applicants may face increased scrutiny concerning their decision to adjust status in the United States and greater uncertainty about whether USCIS will provide an opportunity to submit additional evidence. This could make careful case preparation and evaluation of adjustment versus consular processing options increasingly important. 
• Continued Monitoring: Further court proceedings could change how USCIS applies either policy, particularly if the court grants temporary relief or ultimately vacates the policies. Employers should continue monitoring the litigation and USCIS guidance before making long-term immigration strategy decisions based on the current policies.

The lawsuit introduces a significant legal challenge to two USCIS policies that have changed the adjudication environment for adjustment of status applicants. For now, both policies remain in effect, meaning employers and foreign nationals should continue preparing adjustment applications carefully and account for the possibility of heightened discretionary scrutiny and fewer opportunities to supplement deficient filings while awaiting further developments from the court.

Keith Sonderling confirmed as new Secretary of Labor

The U.S. Senate confirmed Keith Sonderling as the new Secretary of Labor on September 30, 2026, placing him at the helm of the U.S. Department of Labor (DOL) after he had served as Acting Secretary since April 2026. Sonderling brings extensive experience in federal labor and employment matters, including prior leadership roles at the DOL and the Equal Employment Opportunity Commission (EEOC), and his appointment may have implications for employers given the DOL’s role in prevailing-wage determinations, labor certification, workplace enforcement, and other employment-based immigration matters.

Key Points

• Senate Confirmation: The U.S. Senate confirmed Keith Sonderling as Secretary of Labor on September 30, 2026, by a 47–41 majority vote. Sonderling had served as Acting Secretary of Labor since April 20, 2026, following the departure of former Secretary Lori Chavez-DeRemer. 
• Prior Government Experience: Sonderling previously served as Deputy Secretary of Labor and as a commissioner of the Equal Employment Opportunity Commission (EEOC). Earlier in his career, he held leadership positions within the Department of Labor’s Wage and Hour Division and taught employment law as an adjunct professor at George Washington University Law School. 
• Role at the Department of Labor: As Secretary, Sonderling leads the U.S. Department of Labor (DOL), which carries out its mission through numerous agencies and offices and administers and enforces federal laws concerning wages, workplace safety and health, and retirement and health benefits. He also serves as the President’s principal advisor on labor and workforce matters. 
• Immigration-Related Significance: Sonderling’s leadership of the DOL may be relevant to employers because the Department plays an important role in employment-based immigration matters, including the administration of the labor certification and prevailing-wage systems. His prior experience within the DOL provides familiarity with the Department’s enforcement and regulatory functions as the agency continues implementing its labor and workforce policies.

Department of Homeland Security Proposes New $100,000 Fee for Foreign Graduate Work Program

The U.S. Department of Homeland Security (DHS) has proposed new fees, payable by schools, for F-1 students seeking employment authorization through the Optional Practical Training (OPT) program. Under the proposal, schools would pay $70,000 before a student’s first OPT recommendation and $30,000 for each subsequent OPT recommendation, including the two-year STEM extension, potentially creating a significant new cost for U.S. educational institutions and affecting the pipeline of international graduates entering the U.S. workforce.

Key Points

• Proposed $70,000 Initial Fee: DHS’s proposal would require a $70,000 payment the first time a school recommends an F-1 student for OPT of any type, including pre-completion OPT. The proposed fee would be paid by the educational institution, although DHS acknowledges that schools may pass the cost on to students or employers. 
• Additional $30,000 for Continued OPT: An additional $30,000 fee would apply when a graduate receives further employment authorization through OPT, including the STEM OPT extension. A STEM graduate who uses both initial OPT and the STEM extension would therefore generate $100,000 in fees, and students with additional OPT periods could generate more. 
• Role of OPT: OPT allows F-1 students to work for up to 12 months in employment related to their field of study, while qualifying STEM graduates may receive an extension allowing up to 36 months of total employment authorization. The program is frequently used by early-career foreign workers while they seek H-1B sponsorship and has been an important component of the U.S. STEM talent pipeline. 
• Significant Program Reach: Approximately 418,000 students, representing more than one-quarter of F-1 students, had OPT employment authorization during calendar year 2024. The proposal therefore could affect a substantial portion of international students who seek to gain U.S. work experience after graduation.

What Employers Need to Know

• Schools Would Bear the Proposed Cost: Unlike the $100,000 H-1B payment previously imposed on certain employers, the proposed OPT fees would be paid by educational institutions sponsoring or recommending students for OPT participation. However, the proposal would permit schools to recoup the fees from students or employers, so employers could be asked to bear the cost directly. Employers could also be affected if schools stop recommending students for OPT because of the cost. 
• Impact on Talent Pipeline: OPT is commonly used by international graduates to obtain U.S. work experience before seeking H-1B sponsorship, particularly in STEM fields. A significant increase in the cost of participating in OPT could reduce the number of graduates entering the U.S. workforce and could affect employers that rely on international graduates as part of their recruiting pipeline. 
• H-1B Planning: The proposal could have consequences for employers that recruit international graduates who subsequently seek H-1B status. If fewer graduates are able to obtain OPT employment authorization, employers may have fewer opportunities to employ candidates in the United States while they pursue the H-1B process. 
• Not Yet in Effect: The proposed OPT fees do not impose a new payment obligation on schools, students, or employers at this time. The proposal must proceed through the regulatory process before any new fee could become effective.

Looking Ahead

• Public Comment and Final Rule: The proposal will undergo a public-comment period before DHS determines whether to issue a final rule. If DHS finalizes the rule, the timing and precise structure of the fees could differ from the current proposal. 
• Potential Legal Challenges: The proposed fee is likely to receive legal scrutiny, particularly because of its substantial increase over existing OPT-related costs and its potential effect on the structure of the program. Similar immigration measures involving significant new fees have faced litigation, making the legal status of any final OPT fee uncertain. 
• International Student Enrollment: If implemented, the proposal could make U.S. study less attractive to international students who expect to obtain post-graduation work experience. Universities and employers could consequently see changes in international enrollment and the availability of foreign graduates for U.S. employment, particularly in STEM fields. 
• Broader Immigration Strategy: The proposal is part of a broader series of DHS measures affecting international students and highly skilled foreign workers, including proposed changes to H-1B fees and restrictions affecting F-1 student status. Employers that rely on international graduate talent should therefore monitor developments affecting both OPT and the subsequent H-1B pathway.

The proposed OPT fee would represent a substantial change to the economics of post-graduation employment for international students. Although the proposal is not currently effective, its potential impact on educational institutions, international student enrollment, and employers that rely on the OPT-to-H-1B talent pipeline makes the rulemaking important to monitor as DHS considers public comments and determines whether to move forward with a final rule.

The content of this article is intended only to provide a general guide to the subject matter. It should not be construed as legal advice. Please contact FGI at info@employmentimmigration.com or (+1) 248.643.4900 for guidance if you have specific questions.