Recent developments in US immigration law

U.S. immigration law has seen several significant developments in recent weeks, spanning a major regulatory change affecting the authorized period of stay for international students and exchange visitors, a court ruling declining to reinstate the $100,000 H-1B fee, and heightened immigration enforcement related to domestic travel through U.S. airports. These developments, discussed in further detail below, have significant implications for foreign nationals and their employers. 

DHS ends "duration of status" for F, J, and I nonimmigrants

For decades, F-1 students, J-1 exchange visitors, and I foreign media representatives have been admitted to the United States for "duration of status" (D/S), meaning that their authorized stay was tied to the duration of their program or activity rather than a specific end date on their Form I-94. The U.S. Department of Homeland Security (DHS) has now issued a final rule that replaces D/S admissions with admission for a fixed period of time, along with new admission, extension of stay, and related requirements. The rule is scheduled to take effect on September 15, 2026, though it remains subject to congressional review, and DHS may later publish an update changing the effective date. 

What changes under the new rule?

• Most F-1 and J-1 principals and their dependents will now be admitted until the program end date listed on the Form I-20 or DS-2019, not to exceed four years. Most I nonimmigrants will be admitted for a fixed period of up to 240 days, with Chinese passport holders (excluding Hong Kong and Macau SAR) limited to 90 days. 
• The post-completion "grace period" for F-1 students will be reduced from 60 days to 30 days. If a student ends their studies or training early, they and any eligible dependents must depart the United States or take action to maintain lawful status within 30 days. The historical 30-day grace period of those in J-1 status has not changed.
• The shortest period of stay granted to any family member will now be granted to all members of the family – for example, if an F-1 or J-1 principal has a child aging out of dependent status or a spouse with a passport expiration that would shorten their period of stay on Form I-94, then the principal and all dependents would be limited to the shortest period allowable to that family member.
• Those who need to remain in the United States beyond their fixed admission period generally must apply to USCIS for an extension of stay, or depart and seek readmission after travel abroad. An F-1 student who timely files an extension of stay may continue pursuing a full course of study after the admission period expires until USCIS adjudicates the application.
• Importantly, the rule changes how unlawful presence accrues. It will generally begin accruing as soon as the fixed admission period expires rather than only after a formal violation finding (as was the case under prior policy when students and exchange visitors were admitted for D/S). If an overstay occurs, the individual may face inadmissibility consequences upon departure from the United States.
• The rule does not change H-1B cap-gap protections. Eligible F-1 students with timely filed cap-subject H-1B petitions continue to receive automatic extension of stay and employment authorization through April 1 of the relevant fiscal year, or the H-1B start date, whichever is earlier. 

Transition provisions

F and J nonimmigrants already in the United States with D/S admission on the effective date of the new rule generally may remain in D/S until the program end date on their Form I-20/DS-2019, or four years after the effective date, whichever comes first. However, if they travel abroad during this transition period and return, they will receive a new I-94 with a fixed end date. There is also a short-term reprieve for F-1 students applying for post-completion OPT or STEM OPT, as those who timely file Form I-765 on or before March 18, 2027, are not required to separately file an extension of stay. 

Takeaway

Foreign nationals should begin preparing for these changes now. It is also critical to plan for extension-of-stay filings and ensure that F-1 students understand the shorter post-completion grace period to secure their next immigration status or depart the United States. 

Federal appeals court declines to reinstate $100,000 H-1B fee

In a significant development in late July, the U.S. Court of Appeals for the First Circuit declined to stay a lower court's order vacating the $100,000 H-1B supplemental fee that the Trump administration imposed by executive action. As a result, the district court's ruling remains in effect, and USCIS should not be collecting the fee on currently pending or newly filed petitions.

DHS has stated that it "strongly disagrees" with the First Circuit's decision but will comply while it considers its next steps. Notably, DHS also indicated that if the order is later lifted, it still plans to collect the payment. Employers should be aware of this contingency. However, USCIS has not provided any details as to how, when, or through what mechanism it would seek to collect the fee in that event. We will continue to monitor for further guidance.

In the meantime, USCIS is not requesting payment of the $100,000 H-1B fee. It remains unclear how the ruling will affect employers that have already paid the fee.

Takeaway

For now, USCIS should not be collecting the $100,000 H-1B supplemental fee, and employers should proceed accordingly. However, the litigation is ongoing, and DHS has expressly reserved the right to collect the fee if the order is later lifted – on terms it has yet to define. Employers should stay alert for further developments and consult counsel before making any assumptions about long-term fee obligations.

Reports of increased ICE enforcement at airports during domestic travel

Multiple sources, including The New York Times, have reported increased instances of foreign nationals being detained by Immigration and Customs Enforcement (ICE) officers at U.S. airports during domestic travel, across multiple states. 

Individuals reportedly affected include those whose lawful immigration status has expired but who have timely filed for an extension of status or adjustment of status, placing them in a period of authorized stay (including individuals with no criminal records and with valid work authorization or advance parole documents). Reports indicate that immigration agents have detained travelers at airports, including individuals with expired I-94s and pending extension petitions and applications, suggesting an expansion of airport-based enforcement activity beyond what has historically been the norm and doing an about-face on what has for decades been the rule (in terms of being in a stay authorized by DHS). While it is not entirely clear what legal authority is being invoked in all reported cases, the pattern of enforcement is noteworthy and warrants heightened attention to the risk of domestic travel.

Takeaway

Foreign nationals who do not currently hold an unexpired immigration status (even those with pending applications that grant an authorized period of stay) should avoid domestic air travel for the time being because the risks are elevated at this time and the consequences of detention can be severe.

Conclusion

The three developments summarized above reflect an immigration enforcement and regulatory environment that continues to shift rapidly under the current administration. We will continue to monitor these developments closely and issue further updates as warranted. If you have any questions or need additional information about this alert, please feel free to contact the HSF Kramer Immigration Group.