After temporarily pausing a recent Federal Motor Carrier Safety Administration (FMCSA) interim final rule, the U.S. Court of Appeals for D.C. has taken the additional action of granting an emergency stay order over the rule.  

The rule is aimed at limiting issuance and renewal of commercial driver’s licenses (CDLs) for numerous groups of non-citizens legally in the U.S., including asylum seekers, refugees, and DACA holders.

On Nov. 10, 2025, the court put a temporary stay on the interim rule and has gone a step further on Nov. 13 in ordering an emergency motion for stay be granted.

As the court states in its emergency stay order:

To start, for purposes of the stay motions, petitioners have demonstrated that they are likely to succeed in at least three of their challenges to respondents’ interim final rule.

The court then highlights the following three factors:

  1. The FMCSA improperly issued the rule without prior “consultation with the States.”
  • The FMCSA has not satisfied the narrow good-cause exception to issue the rule without notice and comment.
  • The FMCSA acted arbitrarily and capriciously in issuing the rule.

In addition to the above, the court states that “other stay factors also favor such relief.” The court concludes that, despite the FMCSA’s request for a narrow emergency stay, the rule has been restrained in wholeuntil the court comes to a resolution.

Circuit Court Judge Karen LeCraft Henderson penned a lengthy dissent, arguing for an expedited review of the matter on its merits, rather than granting the emergency stay.

For employers, as the stay continues and the rule will not be implemented, CDLs can continue to be renewed and issued under the prior rules while the court completes its review.

We will continue to monitor this developing situation. If you have questions regarding the emergency stay on the FMCSA’s interim final rule, reach out to your Jackson Lewis attorney.

The federal appeals court in the District of Columbia has placed a temporary administrative stay on implementation of a recent Federal Motor Carrier Safety Administration (FMCSA) interim final rule that would limit issuance and renewal of commercial driver’s licenses (CDLs) for non-domiciled applicants individuals. Lujan, et al. v. Federal Motor Carrier Safety Administration, et al., No. 25-1215 (Nov. 10, 2025).

The temporary stay puts on hold the interim final rule on the basis that it would limit CDLs eligibility for numerous groups of non-citizens legally in the U.S., including asylum seekers, refugees, and DACA holders.

With the temporary stay in effect, the court will conduct a thorough review making a final determination on the legality of the FMSCA interim rule.

The court order states:

… the Federal Motor Carrier Safety Administration’s interim final rule, 90 Fed. Reg. 46,509 (Sept. 29, 2025), be administratively stayed pending further order of the court. The purpose of this administrative stay is to give the court sufficient opportunity to consider the emergency motions for stay pending review and should not be construed in any way as a ruling on the merits of those motions.

The rule would have limited “issuance of non-domiciled CDLs to individuals with specific lawful employment-based nonimmigrant status categories (H-2A, H-2B, or E-2).” For employers, CDLs can continue to be renewed and issued under the prior rules while the court completes its review.

The court has not yet scheduled oral arguments on the matter, but they are expected in the coming months with a resolution likely in 2026.

We will continue to monitor this developing situation. If you have questions regarding the temporary stay on the FMCSA’s interim final rule, reach out to your Jackson Lewis attorney.

The Federal Motor Carrier Safety Administration (FMCSA) has announced that it has strengthened requirements for issuance and renewal of commercial driver’s licenses (CDLs) for non-domiciled applicants individuals.

The FMCSA’s interim final rule limits issuance of non-domiciled CDLs to individuals with specific lawful employment-based nonimmigrant status categories (H-2A, H-2B, or E-2). 

The rule also requires state driver’s licensing agencies (SDLAs) to use the USCIS SAVE system, the online service for registered federal, state, territorial, tribal, and local government agencies, to verify the immigration status and citizenship of applicants seeking benefits or licenses.

The rule includes the following key changes:

  • Only individuals in H-2A, H-2B, and E-2 visa status are eligible for a non-domiciled commercial learner’s permit (CLP) or CDL.
  • Non-citizen applicants, except for U.S. permanent residents, must provide an unexpired foreign passport and an unexpired I-94/94A Arrival/Departure Record indicating one of the specified employment-based nonimmigrant categories, specifically H-2B, H-2A, and E-2 classifications, at every issuance, transfer, renewal, and upgrade action defined in the regulation. EADs alone (categories (b)(9) and (a)(17)) will no longer suffice for eligibility.
  • Individual states must immediately pause issuance or renewal of non-domiciled CDLs/CLPs until their processes comply.
  • CDL or CLP validity is limited to one year or the expiration date of the Form I-94/94A, whichever is sooner.

Employees who currently use EADs as proof of work authorization for I-9 purposes remain authorized for employment and may continue to work. However, the new rule will not allow an individual with an EAD to renew or transfer their CDL unless the employer is able to sponsor the driver as an H-2B, H-2A, or E-2, which would be difficult.

If you have questions regarding the interim final rule’s impact or applicability, reach out to your Jackson Lewis attorney.

The Department of Homeland Security (DHS) announced on Oct. 29, 2025, it is ending the practice of USCIS automatically extending validity of employment authorization documents (EADs) of foreign nationals who have timely filed filing renewal applications in certain employment authorization categories. Such foreign nationals will need a formal approval of their renewal application and receipt of a new physical EAD.

Under the automatic extension practice, foreign nationals who had timely filed an application to renew their EAD in certain categories would receive an automatic extension of their employment authorization validity anywhere between 180 days through 540 days from the expiration date of their current EAD, while their renewal application are pending.

DHS states that ending this practice will better allow the “proper screening and vetting” of foreign nationals, as well as fraud detection.

Under the new interim final rule, as of Oct. 30, 2025, foreign nationals who file to renew their EAD will no longer receive an automatic extension of their employment authorization. Rather, they would need to wait for a formal approval of their renewal application and receipt of a new physical EAD to extend their employment authorization.

DHS has identified limited exceptions to the interim final rule, including extensions provided by law or through a Federal Register notice for Temporary Protected Status-related employment documentation. Further, DHS has confirmed that the interim final rule does not affect EADs automatically extended prior to Oct. 30, 2025.

In light of these changes, USCIS advises that foreign nationals should apply to renew their EADs as soon as possible, up to 180 days before their current EAD expires. Foreign nationals who may be eligible to renew their EADs under premium processing, may wish to do so. These actions can help minimize any potential lapse in their employment authorization.

However, due to the unpredictable fluctuations in EAD processing times and the limited availability of premium processing or expedited review in most employment authorization categories, temporary lapses in employment authorization may occur, even for foreign nationals who file an EAD renewal application at the earliest possible instance.

Jackson Lewis attorneys will continue to monitor these developments. If you have questions regarding the interim final rule’s impact or applicability, reach out to your Jackson Lewis attorney.

USCIS has released guidance on President Donald Trump’s Sept. 19, 2025, Presidential Proclamation, “Restriction on Entry of Certain Nonimmigrant Workers,” introducing a new $100,000 fee requirement for certain H-1B nonimmigrant visa petitions.

USCIS on Oct. 20, 2025, issued guidance clarifying which petitions are subject to the Proclamation’s new requirements, how and when the $100,000 payment must be made, and the limited circumstances under which exceptions may be granted.

Who Is Subject to the $100,000 Payment

According to USCIS, the Proclamation applies to new H-1B petitions filed on or after 12:01 a.m. (ET) on Sept. 21, 2025, if they are filed:

  • On behalf of beneficiaries who are outside the United States and do not have a valid H-1B visa.
  • Requesting consular notification, port of entry notification, or pre-flight inspection for a beneficiary in the United States.
  • Requesting a change of status, amendment, or extension of stay, and USCIS determines the beneficiary is ineligible for the requested change or extension (e.g., is not in a valid nonimmigrant visa status or if the beneficiary departs the United States prior to adjudication of a change of status request).

Who Is Exempt

USCIS explains that the Proclamation does not apply to:

  • Petitions filed prior to 12:01 a.m. (ET) on Sept. 21, 2025.
  • Beneficiaries of previously issued and currently valid H-1B visas.
  • Petitions requesting a change of status, amendment, or extension of stay for a beneficiary inside the United States, and USCIS grants such request. Beneficiaries of such approved petitions who later depart the U.S. and apply for a visa based on the approved petition or seek to reenter the U.S. on a current H-1B visa will not be subject to the payment.

How and When to Pay

  • The $100,000 payment must be made prior to filing the petition.
  • USCIS requires petitioners to submit the $100,000 payment using pay.gov, following the instructions on pay.gov at the following link: https://www.pay.gov/public/form/start/1772005176.
  • Petitioners must submit proof of payment or evidence of an exception granted by the secretary of homeland security at the time of filing the H-1B petition.
  • Petitions subject to the $100,000 payment filed without the proof of payment or evidence of an exception will be denied.

Exception Criteria

USCIS may grant exceptions in extraordinarily rare circumstances where the secretary has determined that:

  • The alien worker’s presence is in the United States as an H-1B worker is in the national interest;
  • No American worker is available to fill the role;
  • The alien worker does not pose a threat to the security or welfare of the United States; and
  • Requiring the petitioning employer to make the payment on the alien’s behalf would significantly undermine the interests of the United States.

Petitioners may submit exception requests and all supporting evidence to H1BExceptions@hq.dhs.gov.

To date, there have been two separate lawsuits filed challenging the legality of the Proclamation. Those lawsuits are in the early stages and raise the possibility the Proclamation could be stayed or ultimately found unlawful.

Jackson Lewis attorneys will continue to monitor these developments. If you have questions regarding the Proclamation’s impact or applicability, reach out to your Jackson Lewis attorney.

The U.S. Supreme Court denied the petition for review in Save Jobs USA v. Department of Homeland Security, No. 24-923, on Oct. 14, 2025, effectively ending a long-running legal challenge to employment authorization for certain H-4 visa holders — spouses of H-1B visa holders. The outcome maintains the status quo for many H-4 visa holders currently authorized to work in the United States.

Save Jobs USA, an organization of American tech workers, filed suit challenging a 2015 Department of Homeland Security (DHS) rule that allows certain H-4 visa holders whose H-1B spouses are on the path to permanent residency to apply for employment authorization. H-4 visas are granted to dependent family members of H-1B specialty occupation workers, a category widely used in the technology, healthcare, and other sectors.

Save Jobs USA argued that DHS exceeded its statutory authority under the Immigration and Nationality Act by extending employment authorization for a visa class not explicitly authorized by Congress and that the rule harmed American workers by increasing labor market competition. The group also claimed that a circuit split existed regarding the scope of DHS’s regulatory authority, which warranted Supreme Court review.

The federal government responded that Save Jobs USA lacked standing to challenge the rule and disputed the existence of a circuit split.

The denial of certiorari leaves in place the lower court rulings that the DHS acted within its statutory authority when it promulgated the 2015 rule.

Please contact a Jackson Lewis attorney with any questions about this and other legal developments.

Without notice, E-Verify appeared back online late on the evening of Oct. 7, 2025. As of 2:00 p.m. (ET) on Oct. 8, 2025, E-Verify is still online and appears fully operable. Employers can resume submitting cases.

The E-Verify website had gone dark on Oct. 1, as expected, due to the federal government shutdown. Visitors to the E-Verify site post-shutdown were greeted with the following message:

NOTICE: Due to the lapse in federal funding, this website will not be actively managed. This website was last updated on September 30, 2025 and will not be updated until after the funding is enacted. As such, information on this website may not be up to date. Transactions submitted via this website might not be processed and we will not be able to respond to inquiries until after appropriations are enacted. While E-Verify is unavailable, employers cannot access their E-Verify Accounts. For more information, see What’s New for employers.

Now that the site is back up, and the message no longer displayed, employers should take the opportunity to:

  • Run backlogged queries accumulated since Oct. 1
  • Without delay, enter new hires into the system
  • Close cases that can be closed
  • Address outstanding Tentative Nonconfirmations (TNCs)

Despite E-Verify being up and running, it is unclear whether SSA or DHS has the staff during the shutdown to assist employees with TNCs. E-Verify employers must submit a new hire’s information to E-Verify within three days of hire. This timeline is suspended when E-Verify is unavailable, including when it is inaccessible to a government shutdown. It is not clear when USCIS will restart the three-day submission clock. For now, no official notice confirms the site’s returning to operation. Formal communication with instructions, including when the three-day submission clock will restart, is expected soon.

On Sept. 19, 2025, President Trump issued a Presidential Proclamation titled “Restriction on Entry of Certain Nonimmigrant Workers” (the “Proclamation”). The Proclamation requires employers to pay a $100,000 fee with any new H-1B petition for foreign workers outside the United States, effective Sept. 21, 2025. The stated purpose is to address perceived misuse of the H-1B program and protect the domestic labor market.

On Oct. 3, 2025, a coalition of immigration advocacy organizations and affected employers filed a lawsuit in federal court in the U.S District Court for the Northern District of California challenging the legality of the Proclamation. The plaintiffs include healthcare staffing companies, unions, academic associations, religious organizations, and individual workers.

The lawsuit contends that the $100,000 fee is unauthorized by statute, was implemented without required procedures, and will cause significant harm to U.S. employers, workers, and the public interest. The lawsuit alleges:

  • The Proclamation exceeds presidential authority under the Immigration and Nationality Act (INA). Plaintiffs assert that INA §§ 212(f) and 215(a) do not authorize the President to impose such a fee.
  • The $100,000 fee was imposed without notice-and-comment rulemaking, violating the Administrative Procedures Act and the Regulatory Flexibility Act.
  • The $100,000 fee is arbitrary and capricious, untethered from the actual costs of adjudicating H-1B petitions.

The complaint also details how the fee has “sparked chaos,” caused confusion, forced workers to return to the U.S. abruptly, and led employers to halt or cancel recruitment and hiring of foreign talent. Plaintiffs argue that the fee will worsen shortages in healthcare, education, and religious services, and disrupt ongoing research and innovation.

Plaintiffs seek declaratory and injunctive relief to prevent the fee from taking effect, requesting that the court:

  • Declare sections of the Proclamation and related agency policies unlawful and set them aside.
  • Enjoin enforcement of the $100,000 fee requirement as to H-1B petition adjudications, visa issuance, and admission.
  • Order agencies to process H-1B petitions under existing law, without the new fee.

Jackson Lewis attorneys will continue to monitor the lawsuit and provide updates.

The current government funding expired at the end of the fiscal year without a continuing resolution, resulting in a government shutdown. A federal government shutdown can create ripple effects across immigration processes, but the impact varies depending on the agency.

Since USCIS is fee-funded, most operations — like processing petitions and applications — continue as usual.

However, programs that depend on annual appropriations may be suspended. These include E-Verify, certain religious worker categories, and the Conrad 30 J-1 waiver program. If E-Verify is temporarily unavailable, USCIS has confirmed employers may continue using the new alternate I-9 document review process for remote hires. During the previous government shutdown, USCIS suspended the “three-day rule” for completion of E-Verify and provided follow-up guidance once E-Verify came back online.

Similarly, for the duration of any shutdown, employees will be unable to resolve Tentative Non-Confirmations. During a previous shutdown, USCIS specifically indicated that the time period for resolving Tentative Non-Confirmations will be extended and days the federal government was closed would not count toward the eight federal government workdays the employee has to go to the Social Security Administration or contact the Department of Homeland Security. Employers are advised that they may not take any adverse action against an employee because of an E-Verify interim case status, including while the employee’s case is in an extended interim case status due to a federal government shutdown.

Employers that intend to sign up for E-Verify will be unable to do so during the shutdown. Federal contractors that are required to use E-Verify should contact counsel or their contracting official to determine how best to proceed during this period.

At the Department of State, visa and passport services generally continue since they are also fee-funded, although consular operations may be scaled back if fee revenue is insufficient. Customs and Border Protection inspection personnel are “essential,” so ports of entry remain open, but application processing at the border could slow.

Based on experience during past shutdowns, the Department of Labor (DOL) Office of Foreign Labor Certification likely will not accept or process applications or responses it receives, including Labor Condition Applications, Applications for Prevailing Wage Determinations, Applications for Temporary Certification, or Applications for Permanent Employment Certification. Web-based resources, including the Foreign Labor Access Gateway Portal (FLAG), likely also will be unavailable during shutdown.

State and federal wage and hour requirements aside, H-1B, H-2B, and E-3 employees who are placed on non-productive status or reduced work schedules nevertheless must continue to be paid at the full rate specified on their visa documentation. Implementation of salary reduction, reduced work schedules, or furloughs likely will trigger the need to file amended Labor Condition Applications and H-1B/H-2B/E-3 visa petitions with DOL and USCIS, respectively.

For a full overview of how a government shutdown may affect federal contractors and employers more broadly, see our special report. Our attorneys will continue to monitor the situation and provide updates.

Proclamation “Restriction On Entry Of Certain Nonimmigrant Workers,” released on Sept. 19, 2025 (the “Proclamation”), directs the Department of Labor (DOL) and Department of Homeland Security (DHS) to reform prevailing wage leveling and change the H-1B registration to a weighted selection format.

Specifically, the Proclamation’s Section 4, “Amending the Prevailing Wage Levels,” includes the following provisions:

  • Sub-section (a) directs the DOL secretary to “… initiate a rulemaking to revise the prevailing wage levels to levels consistent with the policy goals of this proclamation …”
  • Sub-section (b) directs the DHS secretary to “… initiate a rulemaking to prioritize the admission as nonimmigrants of high-skilled and high-paid aliens …”

Prevailing Wage Reform

The Proclamation asserts that the H-1B program is being abused by employers by allowing lower-paid, lower-skilled workers to replace highly skilled American workers as “artificially low labor costs are incentivized by the program.”  The Trump Administration is calling on DOL to adjust the current prevailing wage levels, claiming that raising the four wage levels would stem any further abuse.

Weighted Selection During H-1B Cap Registration

DHS has taken action on the Proclamation’s second directive already, issuing a proposed rule on Sept. 24, 2025, titled “Weighted Selection Process for Registrants and Petitioners Seeking to File Cap-Subject H-1B Petitions.” The proposed rule will be open to public comments until Oct. 24, 2025.

Highlights:

  • The rule intends to change the regulations related to the H-1B lottery, replacing the simple random drawing to a weighted selection system when the demand for these visas exceeds the 85,000 limit under current regulations.
  • Under this scheme, H-1B registrations with the highest Bureau of Labor Statistics Occupational Employment and Wage Statistics (OEWS) wage level (from Levels I to IV) are assigned more “entries” (thus, higher odds):
    • Wage Level IV: Entered 4 times
    • Wage Level III: Entered 3 times
    • Wage Level II: Entered 2 times
    • Wage Level I: Entered 1 time
  • The proposed rule does not appear to change the prevailing wage levels themselves; rather, it tilts the odds in favor of registrants with the highest OEWS wage levels.

Between the Proclamation and the proposed rule, the Administration is clearly shifting the H-1B program in favor of higher-wage, higher-skill positions.

If the rule is finalized and adopted, employers, particularly smaller ones, may struggle to adapt to higher wage structures. The rule also could reduce the share of entry-level H-1B roles.

Employers may need to reassess their budgets for H-1B sponsorship or their hiring strategies (such as making fewer hires; identifying only high-value, high-skilled roles for sponsorship; and exploring other possible work visa classifications).

Jackson Lewis attorneys will continue to monitor the situation and provide updates.