Cases & Developments

The Department of Homeland Security (DHS) published its final rule on the current lottery system used to award H-1B visas to employers subject to the annual cap. The rule will implement a weighted selection process for H-1B registrations that will favor the allocation of H-1B visas to higher skilled and higher paid workers. The rule is set to go into effect on February 27, 2026 and is part of the FY 2027 H-1B lottery, beginning March 2026. (Currently, higher education institutions are exempt from the H-1B visa cap and lottery.)

Opinion Granting Defendants’ Motion for Summary Judgment. Plaintiffs, the Chamber of Commerce and the Association of American Universities, brought a lawsuit challenging implementation of the September 19, 2025 Presidential Proclamation imposing a new $100,000 H-1B visa processing fee, asserting that the Proclamation was ultra vires and that its implementation violated the Administrative Procedure Act (APA). The court granted summary judgment for the defendants, holding (1) because the Proclamation was issued pursuant to an express statutory grant of authority to the President under the Immigration and Nationality Act, it was not ultra vires; and (2) given the “lawfully authorized nature” of the Proclamation, defendants’ actions to implement it did not violate the APA. In dismissing the plaintiffs’ APA claims, the court concluded that defendants’ “mere implementation of a legally permissible Proclamation [was] not arbitrary or capricious or contrary to law” and further, their “lack of discretion to deviate from the President’s directives render[ed] any failure to engage in notice-and-comment rulemaking harmless error.” Plaintiffs filed a notice of appeal on December 29, 2025.

The President issued a Proclamation, “Restricting and Limiting the Entry of Foreign Nationals to Protect the Security of the United States,” that continues and expands restrictions on entry of certain foreign nationals in several countries identified by the Administration as “high risk.” The Proclamation maintains full entry restrictions for the twelve countries identified in the June 4 Proclamation and now extends those restrictions to five additional countries: Burkina Faso, Mali, Niger, South Sudan, and Syria. The Proclamation also adds full restrictions and entry limitations on individuals holding Palestinian-Authority-issued travel documents. The Proclamation maintains partial restrictions for four countries identified in the earlier proclamation (Burundi, Cuba, Togo, and Venezuela) and extends these partial restrictions to fifteen additional countries (Angola, Antigua and Barbuda, Benin, Cote d’Ivoire, Dominica, Gabon, The Gambia, Malawi, Mauritania, Nigeria, Senegal, Tanzania, Tonga, Zambia, and Zimbabwe). Exceptions are present for lawful permanent residents, existing visa holders, and certain visa categories like athletes and diplomats. The Proclamation takes effect on January 1, 2026. The White House issued a Fact Sheet providing additional information on the Proclamation.

The American Counsil on Education (ACE) and 20 other higher education associations sent comments to the Department of Homeland Security (DHS) on the proposed rule “Weighted Selection Process for Registrants and Petitioners Seeking to File Cap-Subject H-1B Petitions.” The letter notes the negative impact the rule would have on recently graduated international students, by reducing access to the H-1B visa program for early career professionals, including doctors who have recently graduated medical school and are entering residency programs. Additionally, ACE writes that the rule would limit the ability of institutions of higher education to recruit and retain international students, impacting those who wish to remain in the United States, and the U.S. economy at large. The letter concludes by asking the administration to withdraw the rule.

The American Council on Education (ACE), along with 31 higher education associations, sent a letter to the Department of Homeland Security (DHS) asking for clarity on how the September 19 Presidential Proclamation “Restriction on Entry of Certain Nonimmigrant Workers” would be implemented and requesting that institutions of higher education be exempt from the new $100,000 fee for new H-1B visa applications.