How Will the 2026 Midterm Elections Affect U.S. Immigration Policy? Key H-1B, OPT, and Green Card Updates

The 2026 U.S. midterm elections have reshaped the political landscape in Washington. Democrats have secured control of both the House of Representatives and the Senate, with the new Congress set to convene on January 3, 2027.

For U.S. employers, international students, and foreign professionals, the election results raise an important question: Will a change in congressional leadership lead to a change in U.S. immigration policy?

Several significant immigration proposals are already moving through the federal rulemaking process, including substantial proposed fees for H-1B petitions and Optional Practical Training (OPT), potential changes to employment-based green card sponsorship, and ongoing litigation over international student status.

Understanding where these measures stand—and what could happen next—is essential for businesses planning their workforce strategies for 2027.

Will Democratic Control of Congress Change U.S. Immigration Policy?

A change in congressional control does not automatically reverse existing immigration policies or stop pending regulations.

Under the U.S. system of checks and balances, immigration policy is shaped by three branches of government:

• Congress (Legislative Branch): Enacts federal laws, controls appropriations, and oversees executive agencies.

• The President and Federal Agencies (Executive Branch): Enforce immigration laws and develop regulations within their statutory authority. Key agencies include the Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Services (USCIS).

• Federal Courts (Judicial Branch): Interpret federal law, review agency actions, and may block or invalidate unlawful government measures.

Although Democrats will control both chambers of Congress beginning January 3, 2027, the Trump administration may continue pursuing immigration regulations within its existing legal authority.

Congress can influence immigration policy through legislation, funding decisions, and oversight. Federal courts may also intervene when government actions are challenged. However, neither a change in congressional leadership nor an election result automatically rescinds an existing regulation.

How Do New U.S. Immigration Regulations Become Effective?

Federal agencies generally follow a rulemaking process that may involve the following stages:

1. White House Regulatory Review: Certain significant proposed regulations undergo review by the Office of Information and Regulatory Affairs (OIRA).

2. Notice of Proposed Rulemaking: The agency publishes a proposed rule in the Federal Register.

3. Public Comment Period: Employers, industry groups, individuals, and other stakeholders may submit feedback.

4. Agency Review and Revision: The agency evaluates comments, considers revisions, and may undergo additional regulatory review.

5. Publication of a Final Rule: The agency publishes the final regulation, including its scope and implementation requirements.

6. Effective Date: The regulation takes effect according to its published schedule, unless delayed or otherwise affected by legal proceedings.

Not every regulation follows precisely the same process, and judicial challenges may affect implementation even after a final rule is published.

The key distinction is between a proposed rule, a final rule, and a rule that is actually in effect.

For employers and foreign nationals, understanding that distinction is more useful than attempting to predict whether an election will reverse a particular immigration initiative.

Proposed $103,265 H-1B Fee: What Would It Mean for Employers?

One of the most consequential immigration proposals for U.S. employers involves a substantial increase in the cost of sponsoring certain H-1B workers.

On August 25, 2026, DHS published a proposed rule that would impose an additional $103,265 fee on H-1B cap-subject petitions, including petitions eligible for the advanced-degree exemption.

The proposed fee would be separate from existing H-1B filing fees and other applicable payments.

The public comment period closed on September 24, 2026. As of November 10, the proposed fee had not been finalized or taken effect.

Could the New Congress Stop the H-1B Fee Proposal?

Potentially, Congress could seek to influence the proposal through oversight, legislation, or appropriations. However, congressional control alone does not require DHS to withdraw it.

The administration may continue the regulatory process, subject to applicable legal requirements and potential judicial review.

For businesses that depend on international talent, the financial implications could be significant if the proposed fee is ultimately adopted.

What employers should consider now:

• Review anticipated H-1B sponsorship needs for 2027.

• Assess potential recruitment and immigration-related costs under different regulatory scenarios.

• Identify positions that may be affected by cap-subject H-1B requirements.

• Coordinate hiring timelines with immigration counsel and internal HR teams.

Rather than assuming the proposal will be withdrawn, employers should prepare for multiple possible outcomes.

Related Reading: ILS In-Depth Analysis of the Proposed H-1B Fee Changes

Proposed OPT Fees: Could International Students Face $70,000 or More?

Another major proposal concerns Optional Practical Training (OPT), a work authorization program that allows eligible F-1 students to gain practical experience related to their academic studies.

On October 8, 2026, U.S. Immigration and Customs Enforcement (ICE) published a proposed rule establishing substantial new OPT-related fees.

Under the proposal:

• $70,000 initial fee: An SEVP-certified educational institution would generally be required to pay this amount before recommending an eligible F-1 student for initial OPT.

• $30,000 subsequent fee: Additional OPT recommendations, including certain STEM OPT extensions, could trigger a separate fee when the proposal's conditions are met.

These amounts could create significant financial pressure for educational institutions and potentially affect students and employers.

Are the Proposed OPT Fees Already in Effect?

The principal public comment period closed on November 9, 2026. The government must still review comments and determine whether to proceed with a final regulation.

Until a final rule takes effect, eligible students should continue following the existing OPT and STEM OPT application requirements.

For international students approaching graduation or preparing to extend work authorization, the most important steps remain timely filing, maintaining valid immigration status, and coordinating with their designated school official (DSO).

Employers hiring international graduates should also begin planning for potential changes to work authorization costs and transitions from OPT to H-1B status.

Related Reading: ILS Analysis of the Proposed OPT Fee Regulations

PERM Green Card Reform: Should Employers Continue Sponsorship?

Proposed changes to the Permanent Labor Certification Program, commonly known as PERM, could also affect employment-based green card sponsorship.

The U.S. Department of Labor (DOL) has been advancing regulatory changes involving recruitment procedures, protections for U.S. workers affected by layoffs, and employer compliance obligations.

According to the regulatory developments discussed in this analysis, the reform initiative has completed a preliminary White House review stage but has not yet become a final, effective regulation.

The next steps may include publication of a proposed rule, public comments, and further agency review.

Should Employers Wait Before Starting PERM Applications?

Waiting for a possible policy change may create its own risks. For employers sponsoring foreign workers for permanent residence, key considerations include:

• Whether future recruitment and labor certification requirements may change.

• How new regulations could affect pending or planned PERM cases.

• Whether transition provisions would apply to applications already in progress.

• How immigration processing timelines may affect employee retention and workforce planning.

Employers should continue evaluating their existing PERM cases and anticipated sponsorship needs while preparing job descriptions, recruitment plans, and supporting compliance documentation.

Starting a case now does not necessarily guarantee treatment under existing rules if future regulations include transition provisions. However, postponing preparations solely in anticipation of a more favorable regulatory environment may also be counterproductive.

Related Reading: ILS Guide to Potential PERM Labor Certification Changes

Duration of Status Reform: What Does the Court Order Mean for F-1 Students?

The federal government's effort to replace the longstanding Duration of Status (D/S) framework has raised additional concerns for international students.

Under the traditional D/S system, eligible F-1 students generally may remain in the United States while maintaining valid status and complying with the requirements of their academic or authorized training programs.

DHS published a final rule that would replace this framework with fixed periods of admission, potentially requiring affected individuals to take additional steps to extend their authorized stay.

However, a federal court postponed the rule's effective date before implementation. As of this article's publication, the D/S final rule remains blocked, and the existing Duration of Status framework continues to apply.

Does the Court Order Permanently Eliminate the D/S Reform?

A court order delaying implementation does not automatically mean the underlying regulation has been permanently invalidated. The outcome may depend on subsequent court proceedings, appeals, and government action.

Changes in congressional leadership also do not determine how the courts will resolve the dispute.

International students should therefore continue complying with current requirements when planning program extensions, school transfers, OPT applications, and international travel.

Related Reading: ILS Update on the Duration of Status Final Rule and Litigation

Looking Ahead to 2027: Immigration Planning Matters More Than Political Predictions

The 2026 midterm elections have changed the balance of power in Congress, but U.S. immigration policy will not be rewritten overnight.

Federal agencies may continue advancing proposed regulations, courts may issue additional rulings, and the incoming Congress may seek to influence immigration policy through legislative and oversight powers.

For U.S. employers, HR professionals, and foreign nationals, the priority should be proactive planning rather than speculation.

Three practical steps can help organizations navigate the uncertainty:

• Track regulatory status and effective dates. Distinguish proposed rules from finalized and enforceable requirements.

• Review immigration and workforce timelines. Identify upcoming OPT expirations, H-1B sponsorship needs, and employment-based green card milestones.

• Build flexibility into hiring plans and budgets. Prepare for potential filing-fee increases, regulatory changes, and disruptions to employee work authorization.

Election results may shift the direction of immigration policy debates, but businesses should not base critical workforce decisions on regulatory outcomes that remain uncertain.

How ILS Can Help

At ILS, our immigration attorneys advise U.S. businesses, multinational companies, foreign professionals, and international talent on complex immigration matters, including employment-based visas, permanent residence, workforce planning, and employer compliance.

As immigration regulations continue to evolve, our team helps clients evaluate legal exposure, develop practical strategies, and align immigration planning with broader business objectives.

Planning H-1B sponsorship, OPT-to-H-1B transitions, or PERM green card filings for 2027? Contact the ILS Immigration Team at immigrationlaw@consultils.com to discuss your immigration and workforce planning needs.

Disclaimer：This article is based on the latest policy information as of November 11, 2026. Given the rapid changes in immigration policies, it is advisable for enterprises to pay close attention to official updates and consult professional immigration lawyers for the latest guidance. Our firm will continue to track policy developments and provide clients with timely and accurate professional services.

As Partner and Head of Immigration at ILS, Anna advises global employers on all aspects of U.S. business immigration. She helps companies recruit and retain executives and highly skilled professionals essential to their U.S. operations, with experience spanning industries from autonomous driving and biotech, to entertainment, logistics, and manufacturing.

Previously, Anna practiced at leading global law firms and served as in-house counsel and compliance manager in the telecommunications, finance, and gaming industries. This diverse background equips her with practical, cross-industry insights that inform strategic, business-focused immigration solutions.

Email: contact@consultils.com | Phone: 626-344-8949