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Federal Court Stops Implementation of New D/S Rule
Before the date the rule to eliminate “duration of status” (D/S) was supposed to take effect (September 15, 2026), a federal court in Massachusetts issued a preliminary injunction postponing the effective date. Therefore, for the time being, the Department of Homeland Security (DHS) is barred from implementing the rule that would eliminate D/S for F, J and I visa holders and effectively give them all expiration dates.
Foreign nationals in F, J or I status will now maintain their D/S notation on their I-94 cards even if they enter the United States after September 15, the anticipated effective date of the new rule.
As background, the DHS rule to eliminate D/S would provide all foreign nationals entering the United States in F, J or I status with an effective expiration date instead of “D/S”. This meant that they would need to apply for extensions to finish their F-1 student programs, J-1 training or employment, or their “I” assignment as a foreign journalist. The court ruling is a postponement of the implementation of the rule until further order of the court. The administration will likely appeal the decision. It is possible that we will see a reversal of this court order allowing the rule to be implemented.
We will continue to monitor the situation and provide updates when available.
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White House Proclamation Extends $100,000 H-1B Fee
On Friday, September 18th, the White House issued a Proclamation that extends the prior Proclamation 10973 that imposed the $100,000 fee on certain H-1B visa applications – mostly those approved for consular notification – which was due to expire on September 21, 2026. The new proclamation extends the imposed $100,000 fee until September 21, 2027, despite the existing federal court order barring the imposition of the $100,000 fee.
The new proclamation should still be subject to the federal court decision barring the imposition of the $100,000 fee, but it is uncertain if the administration will take this position.
New H-1B filing fee: Separately, DHS proposed a new regulation that would impose a $103,000 on all cap-subject H-1B petitions for Fiscal Year 2028 cap season which is in March 2027. This new filing fee would be separate from the $100,000 fee under this proclamation if reinstated in the future.
Note: The proposed H-1B filing fee is not currently in effect as the rule is in the comment period. After their review of public comments, DHS may issue a final rule, potentially with modifications. The fee would become effective 30 days after the final rule, with first practical impacts on FY 2028 cap filings. Court challenges may be filed at any stage and could result in injunctions or other relief, potentially on an expedited basis.
Employers must understand how and when these H-1B fees might apply and consult with their immigration attorneys in the ever-changing landscape of H-1B fees.
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Executive Order to Consider Lay Offs for H-1B Petitions
Again, on September 18th, a new Executive Order directs the Departments of Labor, Homeland Security, and State to consider an employer’s layoffs in the prior year (or anticipated ones) when adjudicating the Labor Condition Application (LCA), H-1B petition, issuance of an H-1B visa, or entry of foreign nationals in H-1B status. The EO cites widespread abuse of the H-1B program and the need to protect U.S. workers as justification for this. The EO orders the agencies to consider data related to U.S. economic conditions in the adjudication of H-1B petitions and related applications. It also orders the Secretary of Labor to start reviewing data of previously submitted LCAs for compliance with H-1B program rules.
It is uncertain how the agencies will implement this EO, but it is expected that it will result in increased investigations and enforcement, including audits by the Department of Labor on LCAs, prevailing wages, and likely increased site visits by the Department of Homeland Security for H-1B petitions.
Trow & Rahal will continue to monitor how this EO gets implemented and provide updates when available.
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USCIS Issues Revised Form I-485 on 9/18/2026 With No Grace Period
USCIS released a new version of Form I-485, Application to Register Permanent Residence or Adjust Status, on Friday, September 18th at 3:30 p.m. EDT, which must be used as of that date. This is the core form used by applicants in the United States seeking permanent residence (“green card”) through adjustment of status. The new edition took effect on 9/18/2026 and prior editions of the form will no longer be accepted.
The revised I-485 form is driven by USCIS’s recently announced Public Charge Ground of Inadmissibility Final Rule that also took effect on September 18th. This new rule and corresponding updates to USCIS policy manual change how USCIS determines whether an applicant is likely to become a “public charge” or someone primarily dependent on the government for subsistence.
What “Public Charge” Means Under The New Rule: Under the Immigration and Nationality Act, a person can be found inadmissible as a “public charge” if an officer believes the individual is likely at any time to depend on the government for basic needs such as shelter, food, or healthcare. It isn’t just if the person has received public benefits, but whether an applicant is likely to rely on any means-tested public benefit to meet basic needs.
Key Changes on the New Form: The new form asks one question - whether the applicant has ever received any means-tested public benefit. If the applicant indicates “yes” then the form requires that the applicant list the benefit, the dates they received it, the dollar amount, and the reason why they needed it.
This one question is much broader than the two separate questions on the prior form: whether the applicant ever received cash assistance or if they accepted long term institutionalization paid for by the government.
Much Broader Benefit Consideration: Under the Biden-era 2022 rule, officers were limited to seven enumerated factors to determine public charge and could only consider certain cash assistance and long-term institutionalization. The new guidance keeps those seven factors but broadens to a totality of the circumstances analysis where officers can take into consideration: age, health, family status, financial status, education and skills, prior receipt of specified benefits, and receipt of and dependence on any means-tested public benefit. The adjudicating officers may also consider Form I-864, Affidavit of Support, filed with some applications to adjust status cases.
Trow & Rahal will continue to monitor how this new rule is applied to applications to adjust status and provide updates as needed.
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Executive Orders on Birthright Citizenship
In its latest attempt to target and restrict birthright citizenship, the Trump administration has issued two new executive orders.
As background, President Trump signed Executive Order 14160 in January 2025 to deny citizenship to children born in the U.S. whose parents were undocumented or in the country temporarily on visas. In June 2026, the U.S. Supreme Court ruled in Trump v. Barbara that the 2025 order was unconstitutional on the grounds that the Fourteenth Amendment guarantees citizenship to children born on U.S. soil regardless of parental immigration status.
Following the Supreme Court ruling, President Trump has issued two new EOs:
- EO 14418: "Continuing to Protect the Meaning and Value of American Citizenship": This order aims to carve out exceptions to birthright citizenship, excluding children born to foreign government employees with immunity (ex. Embassy or consulate staff who are foreign nationals), members of foreign terrorist groups, and children whose parents are allegedly using fraud to get US citizenship.
This EO expands the people in the United States who are not born U.S. citizens from children of diplomats (with full immunity) to children of all foreign government employees.
- EO 14419: "Ending Birth Tourism": This order directs federal agencies (Department of Homeland Security and the Department of State) to treat “birth tourism” as a priority problem and to deny visas to people suspected of coming to the United States mainly to give birth so their child will be a U.S. citizen.
These new executive orders are an attempt to chip away at the scope of who gets citizenship at birth and to limit who comes into the United States to give birth. It is expected that these orders will be litigated and eventually reach the U.S. Supreme Court.
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State Department Pauses Immigrant Visa Interviews
The U.S. Department of State has temporarily paused the issuance of immigrant visas at U.S. Consulates around the world to conduct updated public-charge training for consular officers to align with the new public charge rule. Many immigrant visa interviews have been cancelled at last minute, including mass cancellations at some U.S. embassies. The agency has not yet announced how long this pause will last or precisely which posts and visa categories are affected.
This new pause on issuing immigrant visas came after a ruling of the U.S. District Court for the Southern District of New York in August 2026, vacating a State Department policy that suspended immigrant visa issuance to nationals of 75 countries. The court held that the policy barring the issuance of immigrant visas for 75 countries violated the INA’s prohibition on nationality-based discrimination in immigrant visa issuance. It also indicated that the policy conflicted with the statutory and regulatory framework for refusals and exceeded the Secretary’s authority.
DOS issues immigrant visas for permanent resident (green card) status when foreign nationals apply at the U.S. consulates abroad, and USCIS issues green cards when foreign nationals apply from within the United States. Both agencies are moving toward more intensive and coordinated public-charge review for applications for permanent resident status.
As the U.S. consulates are not issuing immigrant visas at this time, we can expect that the time it will take to get an immigrant visa will become increasingly longer even after the pause is lifted.
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USCIS Backlogs Are Growing Despite Fewer New Applications
New data shows the U.S. Citizenship and Immigration Services (USCIS) backlogs are continuing to grow, even as the agency receives fewer applications. These trends affect employment-based, family-based, and humanitarian cases across the board.
According to the American Immigration Council’s USCIS Filing Trends Dashboard, pending cases at USCIS reached about 12.1 million in the second quarter of fiscal year 2026 (FY2026 Q2), up 7.2% from the prior year. This is roughly four times the pending caseload from FY2016, when there were just over 3 million pending cases.
While processing times are increasing, it is reported that USCIS is completing far fewer cases. Completions fell to about 1.5 million in FY2026 Q2, marking the eighth quarter in a row that completions have decreased. By comparison, USCIS completed about 3.3 million cases in FY2024 Q2, more than double the current level.
Similarly, while filings are down sharply, the backlog at USCIS is growing. From FY2025 Q2 to FY2026 Q2, the number of forms received dropped by 45%. Rather than using this lighter intake to reduce delays, USCIS also reduced its number of completions by about 44.5% over the same period.
We continue to see longer delays in the processing of stand alone I-130s, I-765 applications for employment authorization (EAD) for adjustment of status applicants, I-131 applications for advance parole, and other types of petitions and applications. Some of these can be sped up by using premium processing, but some cannot.
These longer adjudication times require employers and foreign nationals to plan ahead and file renewals as soon as possible.
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