Trump 2.0: Immigration Updates with Jennifer Behm - 10.13.26

Transcript:

Good afternoon, everyone. Thank you for joining on this sunny day here in Buffalo, New York. It is October 13th, and I’m thrilled to be here today. I’m Jennifer Behm. I’m a partner with Berardi Immigration Law and immigration counsel to Barclay Damon. And today’s immigration update session is primarily for 2 groups.

first, we have US employers who sponsor talent that is foreign, so global mobility, HR, and legal teams. And then I’m also providing some updates for foreign nationals themselves, and that may be students, H-1B professional workers, anyone going down the path to an employment-sponsored green card. And for today’s session, I want you to keep 3 things in mind.

So first, there have been a ton of headlines. Immigration has been constant whiplash. Things are moving so quickly in our practice area, and I want you to, or I’m going to clarify, but I want you to think about whether the immigration headline you see in your news source is actually a policy that is in effect right now. A lot of things have been blocked by a court or it’s only a proposal, so I’m going to give some clarity on a few of those more recent items today.

And then the second thing I want you to keep in mind is that scrutiny is the new normal. Think about how the government processes might play out for yourself, your company, your stakeholders. The Trump administration is increasingly focused on investigating and vetting. And so, especially for my employers who sponsor foreign workers, documentation’s your best protection.

Here at Berardi Immigration Law, we are sticklers for compliance and good documentation. So if you ever have questions on that, please don’t hesitate to reach out. But the third thing I want you to notice throughout today’s topic is a pattern. Look at the headlines, and I’m going to show you the story that they tell, and that is that this administration is focused on the student-to-professional talent pipeline. Studying immigration blocks. Training and practical work experience, post-graduation immigration blocks.

Moving to H-1B immigration blocks. And employment-sponsored green card immigration blocks. The administration was really originally focused during its messaging on illegal immigration and people who are here without status. That tide has drastically shifted. And with respect to the legal immigration system, and particularly sponsorship by employers, we are seeing new rules, crazy high fees, and scrutiny at every stage of that student-to-professional pipeline.

So I’m going to walk through today all the latest things happening in the employment-based world. And to kick us off, let’s start at the beginning of the pipeline, the student themselves. So I’m going to tell you about a shift in a rule of duration of status, but let me give you some context first. So for decades, F-1 students and J-1 exchange visitors have been admitted for what’s called a duration of status, or D/S. In plain English, that means that a student can come in and stay as long as they’re maintaining their statin– status of being a student.

They’re showing up for classes. They’re carrying a full-time academic load. The government would say, “Get through your program, maintain your status, and we’re not going to give you a fixed end date on your arrival record.” Well, in July, DHS issued a final rule to end that benefit. They want to switch gears and state students are going to get a fixed end date up to 4 years for their program.

They have to apply to USCIS for extensions, and their ability to change programs is going to be limited. So this was a big deal for students and universities. It was going to be more expensive, more cumbersome and a lot of, like, trickle-down impact to young professionals who are trying to go to school. So that rule was set to take effect on September 15th, and the day before, one day before, a federal judge blocked it nationwide.

So as of today, D/S is still the rule. Uh, students don’t need to do anything under this rule. But the government did appeal on September 30th, and it said it wants the appeals court to move quickly. That doesn’t put the rule into effect. Duration of status stays in place unless and until a court says otherwise, but this is a perfect example of why we always ask whether something is in effect.

The rule was final. It had a start date, but it’s still not in effect. And then kind of on a related note for this student pr- to professional pipeline, another thing that the government is looking at is CPT or curricular practical training. That’s work authorization for F-1 students during their degree program, and it covers paid or unpaid internships, co-ops, practicums.

The key word is curricular. The work has to be part of the academic program, and importantly, the school, not the government, authorizes CPT authorization. So normally, students have to complete a full academic year before they can even be eligible for CPT, but there was an exception for graduate programs that require hands-on training right away. And that exception is what some schools have dubbed day one CPT programs, and that’s where students can come join a program and work on their very first day in a full-time capacity for an authorized employer.

That’s important because sometimes this is a backup to the H-1B program. So s- foreign graduates who weren’t selected in the H-1B lottery would go back and perhaps get a, a master’s degree, a second master’s degree, and be able to continue working for related work to their Master’s.

Well, recently in August, the Student and Exchange Visitor Program, which is the part of ICE that oversees international students, they sent 2 messages to school. first, they put the schools on notice. They said SEVP was seeing a rise in CPT authorizations that don’t meet the rules. They’re reminding school officials that they can be held liable for improper approvals.

So scare tactics. And then shortly after that first message in late August, they tightened the test. CPT now has to be a required part of the academic program. So if work authorization or a co-op is required of every student in that program, the student could go on to get Day One CPT. But if it wasn’t something that every student must do, the CPT is not going to be permitted.

So let’s be clear, it’s guidance. It’s not a new regulation. CPT hasn’t been banned. Day One CPT hasn’t been banned either, but schools are reacting and the scare tactics that SEVP is using to really tighten the reins have led universities to pause certain types of CPT while they review their own programs. In fact, I just met with UB Law individuals from the career services the other day, and they said that they’ve tightened their own work opportunities the law school will approve for their foreign law students, and this includes Canadians.

So we are seeing a true reaction in real time. And the message here is to employers, if you rely on interns or CPT workers, especially from Day One programs, so graduates who have work authorization through CPT, you really want to communicate very closely with your employee and confirm that that authorization remains valid before you extend an offer or a continuation or a start date. All right, so let’s move on to postgraduate trainees, and the proposed fees for Optional Practical Training, or OPT, that dropped last week.

So for context, OPT is work authorization that can be issued to student graduate applicants who finish their degree. And it’s usually valid for 12 months with a 24-month extension available for STEM graduates. So many of you on the employer side, OPT is where you first meet your future H-1B workers and Green Card employees.

It’s not uncommon for OPT graduates to then apply for an H-1B cap and then maybe later be sponsored for a Perm Green Card. Well, last week on October 8th, DHS proposed new fees for this work authorization, and if you’re not sitting down, you might want to be. So before approving, DHS said in this proposal that the university would have to pay $70,000 for a student’s first OPT recommendation and then $30,000 for each one after that, including a STEM extension.

The proposal said student- schools can pass the cost on to students, to all its students, to employers, or the university could take it on. And DHS, why are they doing this? Well, they said the fee will root out fraud. They’re concerned about the number of OPT graduates.

They also said they want to protect US graduates competing for entry-level jobs. And the proposed rule is meant to curb students and employers who use OPT to get around the H-1B cap and fee. More to come on the fees related to H-1Bs. So in the proposal, DHS explicitly called the fee a deterrent, and they also said that the money will go to the Treasury, not back into the SEVP programming or to ICE.

So we expect to see litigation because in essence, this does feel like, this proposal reads like a tax which can only be set by Congress. We’ve seen that. Again, I’ll speak to that in a moment about the H-1B 100K fee. But you know, if we’re really reading through the lines, it’s not just about OPT.

This is about the bridge from a student visa to their professional work authorization. The H-1B category is really the only true open-ended work authorization category. It comes with limits or caps on the number of people who can get it, but it’s the appropriate work authorization category for a professional. So this is a very, very clear message.

Now, again, this is only a proposal. It is not in effect. Comments are due November 9th. So if you’re an employer listening and you have a lot of OPT, STEM OPT holders and you use that pipeline for your workforce, it may be worth considering submitting a comment during this proposal period, and that closes November 9th. As proposed, it would take 60 days after a final rule is set to go into effect, and the government did say that students who are already approved OPT and STEM OPT would not be charged for that period, so this would be on a go-forward basis.

But if it goes into effect, we definitely expect to see litigation, keeping a very close eye on this one. Okay. Let’s move to the next step, the H-1B work authorization. So remember, the H-1B is a visa category for individuals who have professional job offers into a role that requires at minimum a bachelor’s degree. The government limits the number of H-1B visas they will issue each year.

And the big story, the whiplash we’re seeing right now in the immigration community is related to fees. There’s 2 of them, and it’s very easy to mix up, so I’m going to walk you through both. The first one that we’ve heard about is the $100,000 H-1B fee, and that goes back to September of 2025. President Trump issued a proclamation requiring a 100K payment for certain new H-1B petitions.

And without getting into the nitty-gritty technicalities, this was mainly impacting H-1B applicants outside of the US who have to get their visa at a consulate abroad before coming in. It did not apply to extensions or changes of status for people here. So a student on OPT could change their status to H-1B in the US and not be subject to the 100K fee. Well, in June, a federal court in Massachusetts struck that down, and that court basically said the fee’s a tax that Congress did not authorize.

In July, the– So the government appealed that. The appeals court in July refused to put the fee back into place while it continues to work through appeals. And in September, less than a month ago, the president extended the proclamation for another year through September 21st of 2027, staying at a 100K fee. So it’s essentially frozen right now.

The court said agencies can enforce that fee. On September 30th, a separate federal court, this one in Northern California, it blocked the fee again, and it said, “This has to go through formal rulemaking.” So with the 100K fee currently, no employer is required to pay that right now. The extension made headlines. It did not change what employers pay today, and there were employers who paid it.

We have a very robust healthcare practice. There are certain healthcare practices that are desperate for talent, especially in underserved areas. There’s shortages. And then we’ve had other healthcare practitioners that are like, “We’re not paying this fee. We’re going to wait it out. We have these petitions from last year pending and sitting.” We’re seeing in practice today, we’re hearing reports that petitions filed without the fee are not being denied, but approvals are very slowly trickling in.

So many of those cases are sitting in limbo. We’re hoping to see some movement. Okay. Now, related, I said that there are 2 big fees. You might have also seen a one hundred and three thousand two hundred and 65 dollar number in the news. That’s not an increase to the 100K fee. It is a completely separate proposal.

So remember how I said the California court said the government has to go through formal rulemaking? Well, DHS went down that road in late August, and they proposed this new one hundred and three thousand two hundred and 65 dollar fee on every H-1B petition subject to the cap. Why that number?

DHS says it comes from the cost of running the immigration system across several agencies. More alarmingly, this fee would have wider spread impact on the H-1B program, and it would apply to all H-1B applicants. So it would hit students on OPT who win the H-1B lottery and are changing their status to H-1B inside the US.

It would be on top of all the other normal filing fees, and the proposal said it would be in addition to the 100K payment if that fee’s reinstated. So s- the government is very clearly trying to make the H-1B program super expensive. DHS’s own numbers acknowledge it would impact small businesses, 3quarters of the small employers who filed H-1B cap petitions last year.

But this one hundred and three thousand and some change fee is only a proposal. It’s not in effect. The comment period’s closed. So what now? I, if I had a crystal ball or a magic 8 ball, I would sa- I, I wouldn’t be surprised if DHS tries to finalize it before the lottery next March of 2027.

Of course, we’ll expect tons of lawsuits, but the lawsuit doesn’t automatically stop a rule from taking effect, and so the government’s trying to achieve chaos here. The formal rulemaking is the step that the court said was missing for the 100K fee. So I’m not assuming this one will be blocked the exact same way.

What should you do? If you’re an employer, you want to build extra time into start dates for your workers, whether they’re in the US, abroad, have some contingency plans. And, and for foreign nationals, keep in mind that it is a very tumultuous time for employers as well. Have your conversations early if you’re looking to enter next spring’s lottery.

And, you know, be patient because there’s just a lot of things that are unknown right now. Recently, as well, kind of happening around the same time the 103 fee came about, the president signed a separate executive order. And related to H-1B planning, it tells agencies to consider if an employer’s recent or publicly planned layoff has an impact when deciding H-1B cases for certain petitioners.

So this is a broad rule. Uh, it applies to every H-1B employer, not just outsourcing firms, which is what the original 100K rule was primarily aimed at. It looks back a full year, and it looks forward for layoff conversations, and it directs agencies to share information with each other. So again, government’s coming in, they’re trying to protect jobs for American workers, which is not a bad thing, but we want to be very mindful when- with our employers when they are dealing with layoffs, they are hiring foreign professionals.

You want to make sure that we’re looking at all of this very holistically in a full scope. Let’s move on to the last stage of that student-to-labor pipeline, and that would be the green card. There’s a lot happening on the green card front. So for context, the most common way for a, a foreign national to get a green card through an employer is through something called the PERM Labor Market Certification process.

And really, in a nutshell, as soon as an employer raises their hand and says, “Hey, we want to sponsor this foreign worker for permanent residency,” the Department of Labor steps in and says, “Okay, US employer, you first need to prove to us that you can’t find a qualified American worker who’s able and willing to do the job you permanently want to offer to this foreign employee. And you need to do that through a series of recruitment labor market tests that we are setting standards for, and w-we’ll look at your labor certification.

We’ll take some time. We’ll certify it if we feel that it was properly done.” So this is a very long, robust, expensive process for employers. Well, last week, on October 8th, Vice President JD Vance and the labor secretary announced that the DOL will not accept new PERM applications or process pending ones for 8 companies, and these are some big names. We have Microsoft, Adobe, Cognizant, Infosys, Tata, Wipro, HCL, and Capgemini.

So that later group, a lot of them are companies that the administration has been targeting for, basically saying they’re abusing immigration programs and disadvantaging US workers. But when we saw this come through from Microsoft and Adobe, it was pretty shocking in the immigration law community because those are big household names, right?

So officials said that Microsoft and Adobe were suspended because of active federal investigations. For the IT firms, they said super high volume of filings. We’re taking a closer look at their labor certification process. But I want to be clear about what it is and what it’s not. This is not a nationwide PERM freeze. So if your company isn’t one of those 8, PERM cases are being processed as usual.

But it does send a message that DOL is looking very closely at company sponsorship processes. We know that the government is leveraging AI. We’re seeing that in case adjudications across the board. We’re taking much closer looks at the interplay of H-1Bs and perms.

So H-1B is current work authorization. A perm green card is for that future, technically, position. It’s not an immediate immigration benefit or immediate work authorization. But if you’ve got 2 s- if you’re filing immigration benefits and these 2 narratives have 2 completely different job descriptions, which isn’t outlawed, and it may not even be necessarily wrong, but the government’s going to ask some questions. So you want to be really clear if you are an employer, what is the narrative on behalf of this foreign national?

What is the job? Where is there overlap? Where isn’t there overlap? Because that may be something that the government looks back to explain. Now, there’s something missing from this perm conversation that I think is really important to address, and that is that the perm system itself is really badly outdated. So let’s chat a little bit about that.

When perm was established and recruitment rules took effect, this is back in two thousand and five, right? Think about the world and what it looked like then. We didn’t have Monster. We didn’t have Indeed. We didn’t have LinkedIn. And people looking for jobs in two thousand and five was a very different way of 2026 recruitment and job a- the job application process. And so the perm process, a good example, is that it still requires Sunday newspaper ads for professional jobs for that labor market test.

When is the last time anyone found a software engineering job in the Sunday paper? So even DOL’s acknowledged that the perm rules do not reflect how hiring works today. And there’s a deeper problem, right? Most perms are filed for people who are already doing this job that the labor market test is for. So the law asks employers to prove no qualified American wants a position that’s already been filled, and it invites a lot of check, box checking that regulators are now punishing, even though it could technically be legal.

And I think we need to point the finger a little bit more at the government agencies itself and Congress, right? The labor certification process was written into law. We have, we have law, we have lawmakers, and no one is really talking about this missing gap of Congress, Congress’s lack of overhauling legal immigration. The system was created in 19 90.

The perm labor recruitment test was established in two thousand and five. Both political parties have had power, and both of them are, are, agencies are governing by press conferences and policies and leaving courts to sort things out. And, and it’s really unfortunate because the people caught in the middle are foreign national workers and their families who have done things the right way.

US employers that are kind of bound often by this crazy outdated test. We know that, you know, there are probably some bad players that are skirting the rules, and by all means, we do need to hold abuse of immigration regulations, we need to hold that abuse accountable. We want to protect American, the American workforce. But it doesn’t have to be this crazy tension that I think politics are often highlighting.

Let’s, let’s develop a system and process, Congress. Step up. Let’s get some real life, real ways to protect American labor force and also hire really good foreign talent that goes through the American education system and find that happy medium. So that was my TED Talk for a minute.

And then a few more minutes before we depart. This one came on Friday, or maybe, maybe Saturday. Maybe, I think Friday. So the last thing is the universities are also being targeted. And on October 8th, that same press conference, Vice President JD Vance announced investigations into 9 universities over their use of the J-1 visitor program. Now, the J-1 visa category is how many researchers, professors, academic scholars come to the US, and they targeted 9 universities.

These are big names. We have Harvard, Yale, Stanford, Brown, University of Pittsburgh, which is my alma mater, UC Davis, Caltech, Arizona State, and MIT. The investigation is being led by the Labor Department’s inspector general, which says subpoenas have been served.

And the administration’s position is that universities are using J-1 researchers to, again, undercut American wages and American opportunities. The universities are saying that they’ve done everything by the book. They’re complying with the law. Several have said they’ll cooperate with the investigation.

I want to be clear. There has not been any formal finding of wrongdoing against these universities. It’s just been public that they are under investigation. So J-1 holders, their visas have not been canceled. J-1 eligibility has not changed.

But again, going back to my initial comment, you know, this is — let, let’s be clear about what’s happening. Universities are in the administration’s sight. We have CPT warnings. We have the duration of status limitation. We have OPT fees. And the message is unmistakable. If you are a university that sponsors international talent, expect to be scrutinized and the government is pushing down y- that they are going to hold universities responsible.

The big takeaway, the student-to-professional pipeline is under pressure at every stage. Headlines are moving faster than the law. We are in constant whiplash trying to keep up with what’s in effect, what’s been stayed, what’s going forward, what’s been rewritten. So, you know, the practical impact here is if you’re an employer, keep your documentation airtight.

Work closely with your immigration attorney. And if you are a foreign national graduate or a student, understand that these are some volatile times. Get yourself a good immigration attorney. Follow along with Berardi Immigration Law. We’re constantly putting out good material on these updates and, you know, we’ll do the best we can to help you and your employer get through these crazy times.

So stay tuned. Join us again for our future Barclay Damon webinars. Enjoy your lunch, and thanks for joining today.