2026 Regulatory Agenda Signals Significant Immigration Changes for Employers

On July 6, 2026, the federal administration released its 2026 Unified Agenda and Regulatory Plan, detailing executive agencies’ short-term and long-term regulatory planned actions.  The U.S. Department of Homeland Security and the U.S. Department of Labor’s agendas included final and proposed immigration rules that may cause significant impacts for employers.  Below we provide a summary of several final and proposed regulations that employers or counsel should monitor closely. 

Department of Labor 

Prevailing Wage Calculation 

In March 2026, the DOL proposed a rule modifying the method for calculating prevailing wages. 

Employers are required to pay at least prevailing wage to employees with H-1B, H-1B1, and E-3 status. Additionally, employers must pay at least the prevailing wage for employer-sponsored green card positions in the EB-2 and EB-3 categories (PERM-Based Green Cards). In setting prevailing wages, the DOL will determine if a job is classified as Wage level I, II, III, or IV, based on the job duties and required qualifications. DOL uses BLS Occupational Employment and Wage Statistic (OEWS) data to set the prevailing wage at each wage level for specific occupation classifications and geographic areas.  

Under previous policy guidance, DOL “set Levels I through IV, respectively, at approximately the 17th percentile, the 34th percentile, the 50th percentile, and the 67th percentile” of OEWS wage ranges for each occupational classification and geographic area.  The proposed rule would increase the percentile for each wage level as follows: 

The new calculations will significantly increase prevailing wages in all occupational categories and geographic areas. DOL has not signaled when it will adopt this new rule. However, as written, once the final rule is adopted, it will apply to all currently pending and future prevailing wage determinations. 

Impact on Employers

• The rule will significantly increase the required wages for employees with H-1B, H-1B1, and, E-3 nonimmigrant visas and the required wages for EB-2 and EB-3 green card sponsorship.
• Employers should evaluate their current sponsorship programs to determine if they should take any action before the implementation of the rule such as securing new Labor Condition Applications referencing current salary information or filing new prevailing wage requests.  Also, Employers may need to review and revise its future immigration sponsorship strategy moving forward.
• Employers should closely monitor any active litigation challenging adoption of this rule. Similar changes were adopted by the DOL through an interim final rule in 2020 that was ultimately set aside by the courts. 

PERM Labor Market Test 

DOL indicated that it plans to release a proposed rule in July 2026 “to modernize aspects of the PERM program for U.S. employers seeking to employ foreign nationals on a permanent basis.”  It further notes that the proposed regulations will modernize the PERM process by “improving the minimum standards for recruiting qualified U.S. workers, strengthening safeguards for U.S. workers impacted by layoffs, and enhancing employer compliance with program requirements related to non-discriminatory recruitment and hiring practices, and record retention requirements.”

Impact on Employers

• The details of the planned rule are unknown.  But there are several ways in which the DOL can seek to achieve its stated goals.
• Employers sponsoring a PERM-based green card must engage in a mandatory labor market test and certify that there are no minimally qualified, available U.S. candidates for the offered role. Specifically, the regulations require employers to take several recruitment steps. DOL could update and standardize the required recruitment steps for employers making them more rigorous.
• Currently, when filing a PERM, an employer is required only to certify that it engaged in mandatory recruitment, but it is not required to submit any evidence related to its recruitment efforts.  New regulations could increase reporting and evidentiary requirements or increase scrutiny of recruitment efforts.
• New regulations could also expand PERM audit triggers, expand document retention requirements, or expand DOL’s enforcement mechanisms.
• In addition to monitoring any updates, employers should review their PERM recruitment processes and ensure that they keep an accurate and complete audit file for each PERM application.

Department of Homeland Security (USCIS)

Limits on F-1 Practical Training 

DHS issued a proposed rule in August 2025 that it intends to adopt as final in July 2026 which eliminates Duration of Status (D/S) admission for individuals in F (student) and J (exchange program) nonimmigrant status. Currently, individuals admitted to the U.S. on F and J visas are admitted for their “duration of stay” which is controlled by documents issued by either the Department of State (DS-2019 for J-Visas) or a Designated School Official (I-20 for F-Visas).

Under the new rule, F-1 Students and J-1 exchange visitors would be admitted for a maximum of 4 years, or until the end date of their education/exchange program. If a student intends to stay past that date, to either continue their education or participate in post-completion practical training, the student would need to file an I-539 application with USCIS.  The same will be true for a J-1 exchange visitor who is seeking to extend their stay in the U.S.

The new rule would also increase requirements for F-1 students to change their course of study. Additionally, it will prohibit F-1 students who have completed a program to extend their F-1 status by changing to a new program at an equivalent or lower level of education. 

Impact on Employers

• For employers with F-1 student employees that are currently enrolled in school or are work-authorized for post-degree training; or J-1 intern/trainee employees, the new rule may introduce increased uncertainty regarding costs and timing of extending their work authorization.
• Under the new rule these employees will need to file an I-539 application with USCIS to extend their status and ensure they continue to be work-authorized. USCIS has not indicated the filing fee for these applications or whether premium processing will be available.
• Employers should examine their J-1 programs and employee population with F-1 status to determine the impacts to employees and make changes to ensure minimal disruption to work authorization.

EAD Extensions

DHS expects to finalize an interim final regulation to “end the practice of automatically extending the validity of employment authorization documents (Forms I-766 or EADs) for [foreign nationals] who have timely filed an application to renew their EAD in certain employment authorization categories.”  Previously, employees with EADs in several categories, including Adjustment of Status Applicants, Refugees and Asylees, Spouses of H-1B workers and individuals with TPS, were eligible for 540-day automatic extensions of work-authorization if they timely filed an EAD extension application. 

The interim final rule, implemented in October 2025, ended that practice and now provides no automatic extension of EADs in these categories unless otherwise noted in the federal register for TPS applicants. Please note that F-1 STEM EAD auto-extensions are limited to 180 days and are not impacted by changes to the 540-day automatic extensions of work authorization. 

Impact on Employers

• Employers who sponsor EADs for employees in this category should examine their program to ensure that they file EAD renewals as soon as allowed, 6 months prior to expiration.
• Because processing times may exceed 6 months, employers may need to make difficult decisions regarding termination or granting leaves of absence to certain foreign workers. Further, the employees with EADs may experience a gap in work authorization. Employers should examine their policy regarding such gaps in work authorization.
• Employers should consult with qualified legal counsel to review their processes for completing I-9 reverifications for employees with affected EADs

Biometrics Collection 

DHS released a proposed rule, which it intends to finalize in December, expanding the practice of biometric collection and its use of biometric data. The rule “proposes to require submission of biometrics by any individual, regardless of age, filing or associated with an immigration benefit request, other request, or collection of information, unless exempted; expand biometrics collection authority upon alien arrest; define ‘biometrics;’ codify reuse requirements; codify and expand DNA testing, use and storage; establish an  ‘extraordinary circumstances’ standard to excuse a failure to appear at a biometric services appointment.”

Impact on Employers

• The rule allows DHS to require signatories of employment-based immigration petitions to provide biometric data.
• Employers should review their authorized signatories and ensure that they are aware of the new regulations once adopted.
• Employers should inform all sponsored employees of the new biometric requirements and ensure that they are aware of the consequences of missing biometric appointments for their non-immigrant and/or green card applications. 

H-1B Reforms 

DHS indicated that it plans to release a proposed rule in August 2026 “to reform the H-1B program by revising eligibility for cap exemptions, providing greater scrutiny for employers that have violated program requirements, and increasing oversight over third party placements, among other provisions.”

Impact on Employers

• The details of the proposed rule are unknown.
• Employers who rely on H-1B cap exemptions, particularly through affiliations with other cap-exempt entities, should review their affiliations to ensure they meet all current requirements and have appropriate documentation to evidence cap-exempt status.

Womble Bond Dickinson stands ready to support employers and employees navigating these changes. Please reach out to [email protected]  or [email protected] for more information.