As 2026 begins, employers of foreign nationals should gear up for another year of dizzying change.
It is well known that the Trump 2.0 administration made targeting undocumented individuals a priority in 2025. Lesser known, but just as significant, are the actions the federal government took last year to reshape the landscape for legal immigration.
The coordinated enforcement efforts of multiple federal agencies accelerated the pace of change, and it shows no signs of slowing.
The new year will demand a new level of vigilance from employers navigating an immigration system under intense scrutiny. To stay ahead, organizations must act swiftly.
Start by auditing immigration processes to ensure every visa sponsorship and Permanent Labor Certification Program, or PERM, recruitment step meets current standards.
Reinforce I-9 and work authorization controls to avoid costly penalties. Build flexibility into hiring plans for longer timelines and higher costs.
Coordinate closely across human resources, legal and recruiting so that PERM postings and other job practices align with standard procedures and current law.
And above all, communicate early and often with foreign talent — because transparency and reassurance are critical to retaining top performers in an era of uncertainty.
Organizations with interdisciplinary teams will be well positioned to respond to the changes on the horizon. Inside the organization, management, human resources, legal and frontline supervisors all have a key role to play in anticipating and responding to enforcement efforts affecting foreign nationals in the workplace.
Likewise, having a ready team of outside advisers with diverse skill sets and subject matter knowledge is key for being prepared in 2026.
Building on the big changes in immigration law from 2025, there are practical steps organizations and their legal teams can take — not just to reduce risk, but to stay ahead in the race for top talent.
New Focus of Enforcement: Safeguarding U.S. Workers' Rights
Federal government priorities for 2026 include coordinated and robust enforcement of statutes that prohibit disparate treatment of workers based on their country of origin.
Organizations should anticipate enhanced enforcement of Title VII of the Civil Rights Act and the Immigration and Nationality Act in an effort to protect U.S.-born workers.
At the U.S. Equal Employment Opportunity Commission, rooting out national origin discrimination is a top priority. Through Project Firewall, which launched in September, the EEOC has partnered with the U.S. Department of Labor to pool resources to protect the rights, wages and job opportunities of highly skilled U.S.-born workers.
In November, the EEOC released guidance emphasizing that Title VII bars discrimination based on national origin with equal force when applied to U.S.-born or foreign-born workers. The guidance reminds employers that a customer or client preference for visa holders is no justification for unlawful discrimination.
Actions that may run afoul of Title VII include selecting visa holders for jobs because of a perception that they have greater skills than U.S.-born workers, offering job-related training only to individuals on sponsored visas, and excluding visa holders from selection in a layoff to avoid jeopardizing their immigration status.
At the DOL, expect tougher scrutiny of PERM labor certifications. Employers sponsoring foreign workers must show no qualified U.S. candidates are available, which means recruitment practices need to be airtight.
HR teams, hiring managers and recruiters should coordinate to ensure PERM jobs are posted and handled like other roles. Any hint that U.S. workers aren't given a fair shot — or that standard procedures were bent to favor a foreign national — can create serious legal risk of INA violations.
H-1B Challenges Ahead: Limited Slots, Tougher Reviews
H-1B Lottery Overhaul
As part of the federal administration's efforts to prioritize legal immigration for those best positioned to contribute to the U.S. economy, in September 2025 the U.S. Department of Homeland Security announced major changes to the forthcoming H-1B lottery, set to begin in March.
As proposed by the DHS, the 2026 H-1B lottery will include a weighting system based on the wage level of the position the worker will hold if selected.
Each year, the Bureau of Labor Statistics sets four wage levels for H-1B positions. Under the new scheme, the number of chances in the lottery is equal to the wage level of the position. Whereas Level 1 positions get one chance, Level 4 positions will get four chances in the lottery, thereby giving highest-paid H-1B applicants the best chance of selection.
The proposed new weighting system is expected to have an outsized impact on organizations seeking to fill lower-paying positions, such as those in healthcare and scientific research.
Employers with a business need for successful H-1B lottery applicants to fill key roles should review and adjust their salary levels, hiring and retention plans, not just for 2026 but also for 2027 and 2028, to maintain their competitive standing in the market for talent.
New $100,000 H-1B Fee
Pursuant to a September 2025 presidential proclamation, any new H-1B visa petition for a worker who is outside the U.S. must include an additional $100,000 payment. The new fee, which is intended to curb perceived misuse of the H-1B program, does not affect extensions, amendments or change-of-status filings for individuals already in the country.
The change dramatically increases costs for employers, raising total filing expenses from a few thousand dollars to over $100,000 per hire. Smaller businesses, nonprofits and healthcare organizations will be limited in their ability to recruit specialized talent abroad.
The rule is currently set for one year but may be extended, and exemptions can be granted for cases deemed to be in the national interest.
H-1B Site Visits Are Back
This year, sponsors of H-1B visa holders should prepare for the increased likelihood of unannounced on-site visits from the Office of Fraud Detection and National Security, a division of U.S. Citizenship and Immigration Services, whose mission includes detection, deterrence, and investigation of immigration fraud.
In the event of a worksite visit, FDNS agents vet whether an employer's statements in an H-1B visa petition reflect the actual job activities and work setting of the person who is the subject of the petition.
FDNS agents typically request to review documents reflecting the visa beneficiary's employment, as well as the employer's quarterly wage reports and other records. The audit also typically includes requests for in-person interviews with employees.
In anticipation of a potential FDNS audit, employers may want to conduct an internal audit of their employment-based visa practices. The audit should include assessment of any sponsored employee's actual job duties, job location and other job circumstances.
Employers may also want to have an action plan prepared in advance to educate and train employees on how to conduct themselves in the event of an unannounced site visit.
USCIS Ends Automatic EAD Extensions and Five-Year EADs
In October 2025, USCIS announced an interim final rule ending the automatic extension of work authorization for certain foreign nationals who filed to renew their employment authorization documents on or after Oct. 30.
Among the visa categories affected by this change are dependent spouse L-2 and H-4 visa holders and visas for pending asylum applicants. STEM OPT applicants are still eligible for automatic EAD extensions.
In December, USCIS announced the end of five-year EADs, reducing most categories to 18 months.
The five-year EAD implemented under the prior administration has been a breath of fresh air for employers who previously had to do I-9 reverifications on an annual basis. That move was also beneficial to employees who no longer had to pay USCIS filing fees and suffer long unpredictable wait times for new EADs each year.
Considering these developments, employers should have robust I-9 compliance protocols in place that include reminders to HR and affected employees of upcoming EAD ending dates.
Notwithstanding such measures, employers may still face gaps in work authorization documents, as employees may only apply for EAD renewals within 180 days of the expiration date, while wait times for extensions often exceed 180 days.
Organizations with a substantial number of EAD-based workers should be mindful of the business continuity disruptions that this development may pose and plan accordingly.
Stay-or-Pay Agreements Under Scrutiny in the States
In the past year, several states have taken steps to outlaw certain so-called stay-or-pay arrangements involving visa sponsorship fees paid on behalf of foreign national employees.
This development is part of a larger state law trend to remove contractual barriers that deter employees from leaving their jobs. These laws call into question the practice many employers use to front the fees and expenses associated with filing a visa application in exchange for the sponsored employee's agreement to repay some of those fees if they resign earlier than the employer anticipates.
In October, California's governor signed into law a bill that restricts employers from requiring employees to repay any costs paid by the employer for immigration or visa expenses, among other fees and expenses. The law took effect Jan. 1.
In a similar move, in January 2025, the Ohio Legislature introduced a bill that would make it a violation of state law to enter into or enforce an agreement requiring workers to reimburse their employers for immigration or visa-related costs paid on their behalf. The bill remains pending in the Ohio Senate.
Employers that impose conditions on foreign nationals to repay immigration-related costs and fees should revisit that practice given these state law developments. Businesses should anticipate that state regulators in other states will take action similar to the legislatures of California and Ohio to restrict stay-or-pay contracts.
Employers may want to evaluate different incentive structures to protect their investment in visa holders.
Extreme Vetting Continues
Organizations should anticipate continued, unprecedented vetting by U.S. immigration authorities of all immigration applications and all foreign-born employees at every juncture.
This includes review of all applications at USCIS service centers, all visa applications and appointments at U.S. consulates abroad and all entries into the U.S. at any airport or land border crossing.
New lines of inquiry are being added all the time.
In November and December, the White House rolled out sweeping immigration changes that could have a significant impact on employers.
USCIS announced an indefinite pause on asylum adjudications, citing security concerns, and froze immigration benefits for nationals of 20 countries considered high-risk — even reopening previously approved cases for additional vetting.
The administration also signaled plans to expand the travel ban to more than 30 countries and proposed new student visa rules that replace "duration of status" with fixed stay limits of up to four years.
In addition, USCIS will conduct a comprehensive rereview of green cards issued to individuals from the restricted countries, raising compliance and workforce planning challenges for organizations hiring foreign talent.
Reduce Employee Anxiety With Proactive Communication
In today's volatile immigration climate, foreign national employees are under immense stress — not just from the uncertainty of their status, but from the constant stream of policy changes and enforcement shifts.
Employers who fail to communicate risk losing employee trust and talent. Proactive, transparent updates about timelines, risks and contingency plans can make a critical difference by reducing anxiety and attrition.
In short, consistent communication is not just a courtesy — it is a strategic imperative for retaining top global talent in 2026.
With the administration doubling down on enforcement and USCIS officers wielding broad discretion in adjudicating immigration benefits, employers should brace for a turbulent 2026.
Every stage of the process — from visa petitions to work authorization renewals — will face heightened scrutiny, unpredictable delays and increased risk of denials.
For U.S. companies competing for global talent, this means greater compliance burdens, higher costs and the probability of workforce disruptions.
Foreign nationals and their employers will need to plan proactively, anticipate challenges and adopt rigorous strategies to navigate an immigration landscape defined by uncertainty and aggressive oversight.
Reprinted with permission of Law360.
