FGI UPDATES: THIS WEEK’S SUMMARY OF US IMMIGRATION NEWS

September 04, 2026

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

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

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

PERM Processing Times as of September 1, 2026

Average Number of Days to Process PERM Applications

SOURCE: flag.dol.gov/processingtimes

DHS Proposal to Eliminate 60-Day Nonimmigrant Grace Period Clears Federal Review

The Department of Homeland Security (DHS) has advanced a proposed rule that would eliminate the discretionary, maximum 60-day grace period currently available to certain employment-based nonimmigrants whose jobs end before their authorized period of stay expires. The proposal, titled “Eliminating the Discretionary 60-day Grace Period,” cleared review by the Office of Management and Budget (OMB) on August 27, 2026, and is expected to move next to publication in the Federal Register for public comment. The current grace period remains in effect, however, and the proposal would not become effective unless and until DHS completes the rulemaking process and issues a final rule.

Key Points

60-Day Grace Period: Current regulations generally allow eligible employment-based nonimmigrants up to 60 consecutive days, or until the expiration of their Form I-94, whichever comes first, after their employment ends. The grace period applies when employment ends voluntarily or involuntarily and is intended to give workers time to find new employment, change status, or prepare to leave the United States.
Affected Visa Categories: The proposed rule would affect H-1B workers as well as certain E, L, O, and TN nonimmigrants and their dependents. The existing regulatory framework also covers E-1, E-2, E-3 and H-1B1 classifications, so the full impact will depend on the precise language DHS publishes in the proposed rule.
OMB Review Completed: DHS submitted the proposal for OMB review on August 6, 2026, and OMB completed its review on August 27, 2026. The completion of federal review moves the proposal closer to publication, but it does not mean the 60-day grace period has been eliminated.
Rule Has Not Taken Effect: The proposal must still be published in the Federal Register, followed by a public-comment period, consideration of comments, and issuance of a final rule before any change takes effect. Until that process is completed, eligible workers continue to have access to the existing grace period.

What Employers Need to Know

Terminations Could Become More Urgent: If the proposal is finalized, employers terminating an affected foreign national could face significantly more immediate immigration consequences for the employee and the employee’s dependents. Workers may have little or no regulatory grace period to secure another position, file an appropriate immigration application, or make arrangements to depart the United States.
H-1B Portability Becomes More Important: Employers hiring H-1B workers after termination would need to pay particularly close attention to timing because the proposed elimination could reduce the window available to move from one employer to another. Immigration filings and onboarding decisions could therefore become much more time-sensitive following a job separation.
Workforce Planning: Companies employing large numbers of foreign nationals should evaluate how the proposed change could affect layoffs, terminations, workforce reductions, and employee retention. Employers may need to coordinate more closely with immigration counsel before terminating affected workers so that available immigration options can be evaluated promptly.
Dependents Are Also Affected: The current grace period applies not only to certain principal workers but also to their dependents. Consequently, elimination of the grace period could create immediate immigration concerns for an entire family when the principal worker’s employment ends.

Looking Ahead

Federal Register Publication: The next major development will be publication of the proposed rule in the Federal Register. The published proposal will reveal the precise language of DHS’s plan and establish the public-comment period through which employers, workers, industry groups, and other interested parties can submit comments.
Public Comment and Final Rule: Clearing OMB review does not guarantee that the proposal will become final in its current form. DHS must consider public comments before deciding whether to finalize, modify, or abandon the proposal, meaning the eventual rule could differ from the proposal currently under review.
Greater Immigration Risk After Job Loss: If finalized, elimination of the grace period would represent a major change for foreign workers who currently have additional time to respond to an unexpected termination. A job loss that can currently be followed by a search for a new employer or an immigration filing could instead create an immediate need to determine whether another lawful immigration option is available.
Broader Restrictive Trend: The proposal is part of a broader series of immigration changes under the Trump administration that could make employment-based immigration more restrictive and less flexible. Employers should therefore monitor this proposal alongside other changes affecting H-1B workers, employment authorization, visa processing, and status maintenance.

The DHS proposal to eliminate the 60-day nonimmigrant grace period could significantly change how employers and foreign workers respond to employment termination. Although the proposal has cleared OMB review, nothing has changed yet: eligible workers can still use the existing grace period while DHS moves through the formal rulemaking process. If the proposal ultimately becomes final, employers and foreign nationals will likely need to act much more quickly following a termination, making advance immigration planning increasingly important.

H-1B Holders’ Spouses Would Lose Work Permits in New Trump Plan

The Trump administration is planning a new regulation that would eliminate employment authorization for spouses of H-1B workers who hold H-4 dependent status. The proposal would reverse a 2015 regulation that allowed certain H-4 spouses to obtain employment authorization, and it comes as the administration advances several other measures that would make the H-1B program more restrictive, including a proposed $103,265 fee for certain new H-1B hires and a proposal to eliminate the 60-day grace period available to H-1B workers after job loss.

Key Points

Proposed Elimination of H-4 Work Authorization: DHS is planning to remove employment authorization eligibility for H-4 spouses of H-1B workers. The proposal is identified as RIN 1615-AD14 and has been placed on DHS’s long-term regulatory agenda, but no specific date has been announced for publication.
Reversal of the 2015 Rule: The proposal would reverse a 2015 regulation that allowed certain H-4 dependent spouses to obtain employment authorization. These spouses generally qualify for work authorization only when the H-1B worker has reached certain stages of the permanent-residence process.
Highly Educated H-4 Spouses: Many H-4 spouses affected by the proposal are highly educated professionals who have established careers in the United States. Eliminating their ability to work could therefore affect both individual families and employers that rely on their skills.
Part of Broader H-1B Restrictions: The proposal is part of a broader series of Trump administration measures targeting the H-1B program and foreign professional workers. Other recent initiatives include a proposed $103,265 fee for certain new H-1B hires and a proposal to eliminate the discretionary 60-day grace period following job loss.

What Employers Need to Know

Recruitment and Retention: Business groups have argued that eliminating H-4 spouse work authorization could make it more difficult for companies to recruit and retain highly skilled foreign professionals. The inability of a spouse to continue working could influence whether an H-1B employee and family choose to remain in the United States.
Potential Impact on Employees’ Families: Employers should recognize that the proposed change could have consequences beyond the H-1B employee’s own immigration status. H-4 spouses who currently work in the United States could face significant career and financial consequences if their employment authorization is ultimately eliminated.
No Immediate Change: The proposal has not yet taken effect, and the regulatory agenda does not provide a target date for its release. Employers should therefore avoid treating the announcement as an immediate termination of H-4 employment authorization and instead monitor the formal rulemaking process.
Broader Immigration Planning: Employers with significant H-1B populations should monitor this proposal together with the administration’s other H-1B initiatives. Taken together, these changes could increase the immigration-related considerations involved in recruiting, relocating, and retaining foreign professional employees.

Looking Ahead

Formal Rulemaking: The next major step will be DHS’s publication of a proposed rule, which should provide greater detail about how the administration intends to eliminate H-4 employment authorization. The proposal would then move through the federal regulatory process before any final rule could take effect.
Potential Legal Challenges: The proposal could face legal challenges because the H-4 employment authorization program has already been the subject of a lengthy court battle. The U.S. Court of Appeals for the D.C. Circuit previously concluded that Congress had authorized the executive branch to extend employment authorization to H-4 spouses, while the Supreme Court declined last year to hear a challenge to the program.
Workforce Competitiveness: Eliminating H-4 work authorization could become an important factor in international talent decisions if spouses are unable to maintain their careers in the United States. Business groups are likely to continue arguing that the change could make the United States less attractive to highly skilled foreign workers and their families.

The proposed elimination of H-4 employment authorization represents another significant potential restriction on the H-1B immigration system and could affect not only H-1B employees but also their working spouses and families. Although no immediate change has occurred, employers and affected families should closely monitor DHS’s forthcoming rulemaking, particularly because the proposal is being developed alongside several other measures that could make the H-1B system more costly and restrictive.

Employment-Based Immigration Backlog Exceeds 1.2 Million People

The U.S. employment-based green card backlog has now grown to more than 1.2 million people, reflecting a long-standing mismatch between the number of skilled immigrants seeking permanent residence and the limited number of employment-based green cards available each year. According to an analysis of USCIS data, the backlog has increased by more than 20% since 2020, with applicants from India, China, and the Philippines facing particularly long waits because of per-country limits. India alone accounts for nearly one million people in the backlog, creating serious challenges for U.S. employers seeking to attract and retain highly skilled foreign workers.

Key Points

Backlog Exceeds 1.2 Million: The employment-based immigration backlog has surpassed 1.2 million people, largely because the supply of employment-based green cards has not kept pace with demand. The backlog has grown by more than 20% since 2020 and could exceed 2 million people within 15 years without Congressional action.
India Faces the Greatest Impact: Nearly one million Indians are currently caught in the employment-based green card backlog, representing approximately 79% of those waiting in the first three employment-based categories. Indian professionals entering the EB-2 queue in 2026 could potentially face waits of up to 179 years, while EB-3 applicants could face waits measured in decades.
Per-Country Limits Drive the Problem: U.S. immigration law generally limits employment-based green cards to 140,000 annually, with a per-country limitation that disproportionately affects countries with large populations of employment-based applicants. As a result, highly skilled workers from countries such as India and China can face dramatically longer waits than similarly situated applicants from other countries.
Multiple Employment Categories Are Affected: The backlog primarily affects workers pursuing permanent residence through EB-1, EB-2, and EB-3, with the severity varying by category and country of chargeability. Current Visa Bulletin data continues to show significant differences in visa availability among countries and employment-based categories.
The Problem Is Structural: The backlog is not simply the result of USCIS processing delays because the underlying issue is the limited number of green cards available compared with demand. Without changes to the statutory visa limits or other Congressional action, the backlog is expected to continue growing over time.

What Employers Need to Know

Retention Challenges: Long green card waits can make it harder for employers to retain highly skilled foreign employees who may remain tied to temporary immigration statuses for many years. This is particularly significant for Indian employees in the EB-2 and EB-3 categories, whose permanent-residence timelines can extend far beyond normal career planning horizons.
Talent Recruitment: The backlog can affect an employer’s ability to compete for international talent because prospective employees may consider the length of the green card process when deciding where to work and build their careers. Employers competing globally for engineers, technology professionals, scientists, and other specialized workers may therefore face an additional immigration-related disadvantage.
Immigration Strategy: Employers should monitor employees’ priority dates, visa availability, and eligibility for different employment categories. Where appropriate, employers and employees may also want to evaluate whether an alternative immigrant category could provide a more favorable path to permanent residence.
Business Planning: Companies with large populations of H-1B and other temporary foreign workers should treat green card backlogs as a long-term workforce-planning issue rather than simply an immigration paperwork problem. Extended waits can affect employee mobility, career decisions, international travel planning, and the employer’s ability to retain key personnel.

Looking Ahead

Backlog Could Continue Growing: Without legislative changes, the employment-based backlog is projected to continue increasing and could surpass two million people within the next 15 years. This would place even greater pressure on employers that depend on foreign professionals to fill specialized positions.
Congressional Reform May Be Necessary: Meaningfully reducing the backlog would likely require Congressional action addressing the number of employment-based green cards available and/or the per-country limitations. Earlier legislative proposals have sought to address employment-based backlogs, but major reforms have not yet resolved the underlying problem.
India Will Remain a Major Concern: Unless the statutory system changes, Indian professionals are likely to continue experiencing the most severe employment-based green card delays. The projected waits—particularly in EB-2 and EB-3—could make permanent residence effectively unattainable within a normal working lifetime for some newer applicants.
Employers May Need More Flexible Strategies: As backlogs grow, employers may increasingly need to consider alternative employment-based immigration categories, priority-date management, and long-term retention strategies. Continued monitoring of the Visa Bulletin and changes in USCIS and Department of State policies will remain important for affected workers and their employers.

The employment-based green card backlog exceeding 1.2 million people highlights a fundamental problem in the U.S. immigration system: demand for highly skilled foreign workers has grown substantially while the statutory supply of employment-based green cards has remained limited. With nearly one million Indians alone caught in the backlog and some projected waits reaching extraordinary lengths, the issue has become not only an immigration concern but also a workforce and competitiveness issue for U.S. employers. Without Congressional intervention, the backlog is likely to continue expanding, making strategic immigration planning increasingly important for both employers and foreign professionals.

Executive Order Increases Scrutiny of Immigration-Tied Financial Activity

A May 2026 Trump administration executive order is increasing federal scrutiny of financial activity connected to immigration status, unauthorized employment, employers of unauthorized workers, and cross-border payments. The order directs the Treasury Department, FinCEN, and other federal agencies to examine existing financial regulations and consider additional measures involving customer identification, due diligence, suspicious activity, and lending decisions. Although the administration stopped short of requiring banks to collect citizenship information from every customer, subsequent agency guidance indicates that immigration status, employment authorization, and other immigration-related factors may increasingly become part of financial institutions’ compliance and risk assessments.

Key Points

Greater Financial Scrutiny: Executive Order 14406, Restoring Integrity to America’s Financial System, directs federal agencies to examine financial activity potentially connected to unauthorized employment, tax and identity fraud, and cross-border movement of funds. The order gives agencies including Treasury, FinCEN, and the CFPB a larger role in reviewing financial risks associated with immigration-related activity.
Banking Red Flags: On June 5, 2026, FinCEN, the FDIC, OCC, NCUA, and IRS issued joint guidance identifying potential warning signs of unlawful employment schemes. These include stolen identities, shell companies, off-the-books payroll, payroll-tax evasion, staffing arrangements, foreign identity documents, and the use of Individual Taxpayer Identification Numbers (ITINs) to conceal unauthorized workers or unlawful activity.
No Universal Citizenship Requirement: The executive order did not require banks to collect citizenship information from all customers, despite an earlier administration proposal that would have required broader collection of citizenship data. Instead, the administration adopted a more targeted approach focused on identifying financial activity that may indicate unauthorized employment, fraud, or other unlawful conduct.
Customer Identification and Due Diligence: Treasury is expected to consider changes to Bank Secrecy Act customer due-diligence requirements and customer-identification rules, including issues involving foreign consular identification cards. Financial institutions are therefore likely to face additional questions about how immigration-related information should be evaluated as part of existing compliance programs.

What Employers Need to Know

Workforce and Identity Verification: Employers should expect greater attention to payroll practices, worker identities, employment authorization, and transactions that could suggest unauthorized employment. Companies should ensure that their employment eligibility and payroll records are accurate and consistent with applicable immigration and tax requirements.
Financial Institution Questions: Employers and foreign national employees may encounter additional documentation requests when opening bank accounts or applying for credit if immigration-related factors become relevant to a financial institution’s risk assessment. The presence of an immigration-related factor, however, does not by itself establish that an individual or transaction is unlawful or presents a particular level of risk.
Payroll Compliance: Companies should pay particular attention to payroll structures, tax reporting, staffing arrangements, and the use of employee identification information. The federal advisory specifically identifies off-the-books wages, payroll-tax evasion, shell companies, and identity-related practices as potential indicators of unlawful employment schemes.
Credit and Immigration Status: Employers should also be aware that immigration status can affect employees’ interactions with lenders even though the employer may not be directly involved. The CFPB has indicated that lenders may consider immigration status, lawful presence, employment authorization, and factors suggesting removal risk when those factors could affect a borrower’s future income and ability to repay a loan.

Looking Ahead

Additional Regulations: Treasury is expected to propose further regulatory changes involving customer due diligence, customer identification, and foreign identification documents. These changes could increase the amount of immigration-related information financial institutions consider during account opening and ongoing compliance reviews.
Expanded Federal Coordination: The involvement of Treasury, FinCEN, banking regulators, the IRS, and the CFPB demonstrates that immigration enforcement considerations are increasingly reaching beyond traditional immigration agencies. This broader coordination could result in additional scrutiny of employment, payroll, banking, tax, and credit activities involving foreign nationals.
Impact on Foreign Workers: Foreign nationals could increasingly encounter immigration-related questions outside the traditional visa and employment authorization process, particularly when seeking banking services or credit. At the same time, federal guidance emphasizes that immigration-related indicators should be evaluated in context rather than treated as illegal conduct evidence.
Continued Monitoring: The administration’s implementation of the executive order remains an area that employers and immigration practitioners should monitor closely. Future regulations and agency guidance will determine how significantly these measures affect employers, foreign workers, banks, and other financial institutions.

The executive order represents a broader expansion of the Trump administration’s immigration-related enforcement approach into the financial system. While it does not impose a blanket requirement for banks to collect citizenship information, the combination of new federal guidance, potential regulatory changes, and increased attention to unauthorized employment means that immigration status and employment authorization may play a larger role in financial compliance and risk assessments. Employers should therefore maintain accurate employment, identity, payroll, and tax records while monitoring additional guidance that could affect their foreign-national workforce.

Trump’s New Birthright Citizenship Restrictions Halted by Federal Court

A federal judge has temporarily blocked the Trump administration’s latest attempt to restrict birthright citizenship, finding that the new executive orders are likely unconstitutional under the Fourteenth Amendment. The administration issued the new orders in August 2026 after the Supreme Court rejected Trump’s earlier effort to restrict birthright citizenship, with the latest measures focused particularly on so-called “birth tourism” and certain children born in the United States to noncitizen parents. The court’s preliminary injunction prevents the federal government from implementing the new restrictions while the legal challenge continues, meaning the longstanding rule that children born in the United States receive U.S. citizenship remains in effect for now.

Key Points

New Executive Orders: Trump issued two new executive orders in August 2026 seeking to narrow birthright citizenship protections, including restrictions involving children whose parents are allegedly engaging in commercial or fraudulent efforts to obtain U.S. citizenship. The measures also address children born to certain foreign government employees and individuals considered “alien enemies.”
Federal Court Blocks Implementation: U.S. District Judge Deborah Boardman issued a preliminary injunction preventing the administration from enforcing the new restrictions while the lawsuit proceeds. The court determined that immediate relief was appropriate even though the administration argued that the case was premature because detailed implementation guidance had not yet been finalized.
Fourteenth Amendment Remains Central: The legal dispute centers on the Citizenship Clause of the Fourteenth Amendment, which has long been understood to provide citizenship to people born in the United States, subject to narrow exceptions. Existing Supreme Court precedent, including United States v. Wong Kim Ark, recognizes birthright citizenship as a fundamental constitutional principle.
Supreme Court Already Rejected Earlier Policy: In June 2026, the Supreme Court struck down Trump’s original effort to restrict birthright citizenship, dealing a major legal setback to the administration’s policy. The new executive orders represent a narrower effort to pursue some of the same objectives after that ruling.
Passport Procedures Could Be Affected: The State Department is considering procedures that could require parents to provide evidence of their own citizenship or immigration status when applying for U.S. passports for their children. Such documentation could include passports, birth certificates, or immigration forms and would be intended to implement portions of the administration’s new policy if permitted to proceed.

What Employers Need to Know

No Immediate Change to Citizenship: The court’s injunction means employers should not treat the new executive orders as having changed the citizenship status of U.S.-born children. For now, the existing legal framework recognizing birthright citizenship remains in place while the litigation continues.
Potential Employee-Family Concerns: Foreign national employees may have questions about how the administration’s policies could affect children born in the United States, particularly where neither parent is a U.S. citizen or lawful permanent resident. Employers should recognize that these issues can create significant uncertainty for affected employees and their families.
Documentation Issues: If the administration’s proposed passport procedures or other implementation measures eventually take effect, foreign national employees may face additional documentation requirements concerning their children’s citizenship. Employers should avoid providing definitive immigration advice on these issues and should refer employees to qualified immigration counsel when necessary.
Monitor Related Immigration Developments: Employers with substantial foreign-national workforces should continue monitoring developments involving citizenship, visas, and immigration documentation because the administration is pursuing multiple changes simultaneously. The outcome of the current litigation could determine whether additional procedures are imposed on affected families.

Looking Ahead

Further Litigation Is Expected: The administration is likely to continue defending the new executive orders through the federal courts, while immigrant-rights organizations and affected families will continue challenging them. The dispute could ultimately return to the Supreme Court, particularly given the Court’s recent decision addressing the administration’s earlier birthright citizenship policy.
Scope of the New Orders Will Be Tested: A central question will be whether the administration can distinguish the new restrictions from the broader policy that the Supreme Court previously rejected. Courts will likely examine whether the new measures are simply a narrower version of the same unconstitutional attempt to restrict citizenship or address legally distinct circumstances.
Passport Rules Could Become Important: The State Department’s consideration of additional documentation requirements could create a practical impact even while the underlying citizenship litigation continues. If implemented, parents applying for passports for U.S.-born children could face additional questions regarding their citizenship or immigration status.
Birth Tourism Will Remain a Focus: The administration has specifically emphasized efforts to prevent foreign nationals from using U.S. birth as a means of obtaining citizenship for their children. Even if broader restrictions remain blocked, additional government measures targeting alleged birth-tourism activity may continue to emerge.

The federal court’s decision represents another significant legal obstacle to the Trump administration’s efforts to restrict birthright citizenship. Although the administration has attempted to develop narrower restrictions focused on birth tourism, fraud, foreign government employees, and other circumstances, the court has temporarily blocked those measures based on the Fourteenth Amendment and existing Supreme Court precedent. For employers and foreign national employees, the immediate impact is limited because the existing birthright citizenship framework remains in effect, but the continuing litigation and potential changes to passport and other government procedures warrant close monitoring.

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.

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