U.S. Immigration Alerts

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

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

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

• As of February 9, 2025:

1. 1. DOL has been processing H-1B prevailing wage determinations (PWDs) filed in November 2025 (OEWS), November 2025 (non-OEWS), or earlier. 
   2. DOL has been processing PWDs for PERMs filed in November 2025 (OEWS), October 2025 (non-OEWS), or earlier.
   3. DOL has been processing H-1B redeterminations filed in October 2025 or earlier. 
   4. DOL has been processing PERM redeterminations filed in October 2025 or earlier. 
   5. DOL has not provided processing times for H-1B Center Director Reviews.
   6. DOL has been processing PERM Center Director reviews requested in August 2025 or earlier.

• PERM priority dates and average number of days to process applications:

PERM Processing Times

Average Number of Days to Process PERM Applications

SOURCE: flag.dol.gov/processingtimes

Reminder: FY 2027 H-1B Cap Registration Opens March 4, 2026

USCIS will open the FY 2027 H-1B cap electronic registration period at noon (ET) on March 4, 2026, and close it at noon (ET) on March 19, 2026. Employers must submit registrations through a USCIS online account and pay the $215 registration fee per beneficiary. Selections are expected by March 31, 2026.

This cap season includes a new weighted selection system that prioritizes higher-skilled and higher-paid positions. Employers should also be aware of potential additional financial requirements under a recent presidential proclamation.

Please ensure organizational accounts are active and ready before the registration period opens. Should you have any questions, please reach out to FGI at info@employmentimmigration.com 

Lawsuit Challenges Trump Gold Card

On February 3, 2026, several organizations, including the American Association of University Professors (AAUP), filed a lawsuit against the Trump administration over its new “Gold Card” visa program. The lawsuit argues that the program improperly allows wealthy individuals to gain immigration advantages by paying large sums of money, instead of prioritizing people with exceptional skills who would benefit the United States. The plaintiffs claim the program violates Congress’s authority over immigration and unfairly reshapes existing visa categories.

Key Points

• Who Filed the Lawsuit: A coalition led by the AAUP brought the case to challenge the legality of the program. They argue it harms established immigration priorities and processes.
• Agencies Named as Defendants: Multiple federal departments are involved, including Homeland Security, State, and Commerce, as well as U.S. Citizenship and Immigration Services. The lawsuit also names the leaders of these agencies.
• Core Legal Argument: The plaintiffs say the program exceeds executive authority by bypassing Congress’s exclusive power to regulate immigration and raise revenue. They argue that selling visa priority undermines laws passed by Congress.
• Pay-to-Play Structure: The program gives visa advantages to those who can pay $1 million. According to the complaint, this shifts focus away from merit-based immigration toward wealth-based access.
• Impact on Existing Visa Categories: The lawsuit claims the program alters EB-1A and EB-2 standards. It allegedly changes how eligibility is defined and how applications are processed.

The complaint challenges the creation and implementation of the “Gold Card” program “in contravention of Congress’s exclusive authority to regulate immigration and to raise revenue. By giving priority consideration to and awarding visas to individuals who can pay $1 million, rather than to highly talented individuals whose admission would benefit the United States, the program runs counter to the laws enacted by Congress.”

What U.S. Employers Need To Know

• Displacement of Qualified Talent: Employers may lose access to top candidates because visa numbers are limited. The lawsuit argues that Gold Card applicants push out statutorily qualified individuals.
• Changes to EB-1 and EB-2 Processing: Traditional merit-based pathways may be weakened. Employers relying on these categories could face longer waits or fewer approvals.
• Expedited Treatment for Paying Applicants: Applications tied to payment are fast-tracked. This may create uneven timelines and uncertainty for standard employment-based petitions.
• Legal Uncertainty: Ongoing litigation could disrupt visa planning. Employers may need to adjust strategies if courts block or alter the program.
• Policy Shift Away From Merit: The complaint emphasizes a move away from skills-based immigration. This could affect industries dependent on highly trained professionals.

Plaintiffs note that the payment-linked program also “alters how immigrant classifications, including the EB-1A ‘extraordinary ability’ and EB-2 ‘exceptional ability’ preference categories, are defined and how applications are processed” and “causes the displacement of statutorily qualified applicants given the limited number of available visas and the preferential treatment of Gold Card applications.”

Looking Ahead

• Court Rulings Could Halt the Program: Judicial intervention may stop or reshape the Gold Card system. A ruling for the plaintiffs could reinforce Congress’s role in immigration policy.
• Future Executive Actions: Other administrations may attempt similar programs. The outcome of this case could set limits on such efforts.
• Impact on Immigration Policy Debates: The lawsuit may intensify arguments over wealth versus merit. Lawmakers could respond with new legislation.
• Uncertainty for Applicants: Potential immigrants may delay or reconsider applications. Confusion over eligibility rules could grow while the case is pending.
• Long-Term Talent Attraction: The U.S. reputation for welcoming skilled workers is at stake. Critics argue the program undermines long-standing goals.

By treating a payment to the Commerce Department as evidence of statutory eligibility for EB-1 and EB-2 visas, and expediting consideration of applications from individuals who make the payment, the defendants “both exceed their statutory authority and act contrary to long standing laws and policies designed to attract highly talented individuals to the United States,” the complaint states. By conditioning access to the visas on payment, the Gold Card program “allows visas to be bought, and thereby takes visas away from the people to whom federal statute specifies they should be awarded — scientists and engineers, physicians, researchers, and other accomplished individuals whose admission would substantially benefit the United States.”

Conclusion

In conclusion, the lawsuit argues that the Gold Card visa program fundamentally changes U.S. immigration by prioritizing wealth over talent. According to the plaintiffs, this approach violates federal law, disrupts established visa categories, and deprives the country of skilled individuals who would meaningfully contribute to society and the economy.

SOURCE: Billal Rahman, “Donald Trump’s Gold Card Visa Hit with Major New Lawsuit,” MSN: https://www.msn.com/en-us/news/politics/donald-trumps-gold-card-visa-hit-with-major-new-lawsuit/ar-AA1VDDT7

Forbes: Immigration Tightens as AI Fuels Record H-1B Demand

U.S. technology companies are hiring large numbers of H-1B visa holders to support massive investments in artificial intelligence (AI), according to data from the National Foundation for American Policy (NFAP) that was recently published in Forbes. In fiscal year (FY) 2025, more than 80% of new H-1B labor condition applications (LCAs) certified for Amazon, Meta, Google, Microsoft, and Apple were for AI-related roles. At the same time, the Trump administration has moved to restrict H-1B hiring and international student pathways, creating tension between the goal of U.S. leadership in AI and policies that limit access to global talent.

Key Points

• AI Is Driving H-1B Demand: In FY 2025, over 80% of certified LCAs for new H-1B hires at Amazon, Meta, Google, Microsoft, and Apple were for AI-related occupations. The data, covering the first three quarters of the fiscal year, show that foreign-born talent is closely tied to companies’ AI strategies.
• Massive Capital Investments in AI: Alphabet (Google’s parent company), Meta, Microsoft, and Amazon collectively expect to spend more than $380 billion in capital expenditures in 2025. Amazon plans to invest an additional $200 billion in 2026, Google up to $185 billion, and Meta over $300 billion, largely on data centers and AI infrastructure.
• H-1B Rules Require Market Wages: Employers must pay H-1B workers at least the higher of the actual wage paid to similar U.S. workers or the prevailing wage for the occupation. Given these wage requirements and the scale of AI investments, analysts argue companies are not using H-1B visas to save money.
• Limited Supply of H-1B Visas: The annual H-1B cap is 65,000 visas, with an additional 20,000 reserved for individuals who earn a U.S. master’s degree or higher. Altogether, this represents only about 0.05% of the U.S. labor force.
• Foreign STEM Talent Fuels Growth: International students make up about 70% of full-time graduate students in AI-related fields at U.S. universities. Research shows foreign STEM workers contributed between 30% and 50% of U.S. productivity growth from 1990 to 2010, meaning up to one-sixth of overall economic growth during that period came from foreign-born scientists and engineers.

What US Employers Need to Know

• AI Hiring and Economic Impact Are Linked: Economists report that AI investments have strengthened economic growth, even during periods of softer consumer spending and higher interest rates. Strong AI-driven performance also contributed to a 16.4% rise in the S&P 500 over a 12-month period in 2025.
• New Fees Increase Costs: In December 2025, a federal judge ruled against business groups challenging a $100,000 fee on the entry of new H-1B visa holders. This significantly increases the financial burden on employers seeking to hire foreign talent.
• H-1B Selection Changes Favor Senior Workers: A finalized rule in December 2025 changes the H-1B selection process to favor higher-level, more senior positions. This shift disadvantages recent graduates and international students entering the job market.
• OPT May Be Restricted or Eliminated: An upcoming rule is expected to end or limit Optional Practical Training (OPT), which currently allows international students to work in the U.S. after graduation. Without OPT, employers may lose a key pipeline for recruiting and transitioning foreign graduates into H-1B status.
• Student Visa Rules May Tighten: DHS has proposed replacing the “duration of status” policy for international students with fixed admission periods. This would create new compliance burdens, especially for students in programs lasting more than four years, and could discourage enrollment in U.S. universities.

Looking Ahead

• Stricter H-1B Eligibility Standards: A forthcoming H-1B rule may revive elements of a 2020 regulation that attempted to narrow eligibility and restrict work at third-party customer sites. If implemented, this could make it harder for high-skilled foreign nationals to qualify for or maintain H-1B status.
• Higher Wage Requirements Could Price Out Talent: The Department of Labor is expected to issue a rule that raises required wage levels for H-1B and employment-based immigrants. Higher wage thresholds could effectively price many foreign professionals out of the U.S. labor market.
• Offshoring Risks: Research from the Wharton School indicates that restricting H-1B visas can lead companies to move jobs abroad. Policies intended to protect U.S. workers may unintentionally encourage firms to expand operations overseas instead.
• Impact on U.S. AI Leadership: Limiting access to foreign-born STEM talent could slow AI development at leading U.S. companies. This may conflict with national goals of maintaining global leadership in artificial intelligence.

Conclusion

Immigration data show that America’s leading technology companies rely heavily on H-1B professionals to support enormous investments in artificial intelligence, a sector that is driving economic growth and stock market gains. At the same time, new rules and higher costs threaten to restrict employers’ ability to hire foreign-born talent, particularly international students trained in U.S. universities. History and economic research suggest that limiting skilled immigration may not protect U.S. jobs, but instead could push innovation and employment opportunities overseas—raising important questions about the future of America’s AI leadership.

SOURCES: Stuart Anderson, “New Immigration Limits Loom as AI Drives H-1B Visas for Tech Companies,” Forbes, February 8, 2026: www.forbes.com/sites/stuartanderson/2026/02/08/new-immigration-limits-loom-as-ai-drives-h-1b-visas-for-tech-companies/ ; National Foundation for American Policy, “AI and H-1B Visas”: nfap.com/research/nfap-policy-brief-ai-and-h-1b-visas/