Immigration Updates
New Executive Orders Address Birthright Citizenship and “Birth Tourism”
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Discussion
Following the U.S. Supreme Court’s decision in Trump v. Barbara striking down the January 2025 Executive Order, which attempted to invalidate birthright citizenship under the Fourteenth Amendment, President Trump signed two new executive orders aimed at limiting citizenship status. While the Court reaffirmed that the Fourteenth Amendment granted automatic citizenship to almost all those born on U.S. soil, it left open the possibility for Congress to limit birthright citizenship by expanding the narrow exceptions to birthright citizenship.
On August 6, 2026, Executive Order 14418, Continuing to Protect the Meaning and Value of American Citizenship, directs executive departments and agencies to not grant documents recognizing citizenship in cases where: (1) either parent is an alien enemy as defined by the law; (2) either parent is a foreign government employee (e.g., ambassadors, those employed by a foreign embassy or consulate, those employed by a foreign government in an official capacity, those employed by an international organization that possesses international-organization immunity); (3) either parent is engaged in a commercial transaction to purchase or access birthright citizenship for the person, or engaged in fraudulent activity to obtain citizenship; and (4) the person is born in a territory or territorial waters of the United States where citizenship is not conferred by federal statute.
Executive Order 14419, Ending Birth Tourism, directs the U.S. Department of State to strengthen visa screening procedures to target applicants traveling to the U.S. for the primary purpose of giving birth so the child will be a U.S. citizen. It identifies “birth tourism operators” who advertise and induce foreign nationals to travel to the U.S. for the purpose of giving birth by promising citizenship, access to public benefits, and short-term stays in specialized facilities. The U.S. Secretary of State and Secretary of Homeland Security are directed to take appropriate action to prevent the entry of individuals engaging in birth tourism by revoking visas or travel authorization, denying entry, or permanently barring entry. There is a narrow exception for entry based on humanitarian grounds or when the individual’s entry is in the national interest, as determined by the Secretary of State or the Secretary of Homeland Security.
Both executive orders direct the State Department and Department of Homeland Security to issue updated policies and procedures to implement the orders. Several immigration advocacy groups have indicated they will be challenging the executive orders due to their broad language. With the directive to increase screening methods, employers should expect further delays to visa issuance and entry into the U.S. impacting business operations.
Action Items
- Consult with immigration legal counsel for matters involving workers applying for visas or reentering the U.S.
USCIS and DHS Updates on Applications and Filing Fees
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U.S. Citizenship and Immigration Services (USCIS) and the Department of Homeland Security issued two new updates regarding the revised Form I-765 and another attempt to issue a large fee on H-1B visas.
Revised Form I-765
Effective September 15, 2026, a revised Form I-765 aligns with a final rule that changes the admission period for F, J, and I visas from duration of status to a fixed time period. Originally, these visa types were admitted for an unspecified period of time (duration of status) to engage in activities authorized under their visas (e.g., authorized practical training after completion of studies at an educational institution). The final rule cited both a concern for national security and abuse of the student visa to change the visa’s duration to a fixed time period.
Since the revised form is required to comply with the final rule, USCIS is not providing a grace period for use of the form dated 8/21/25. Therefore, employers should be prepared to use the revised form as of September 15, 2026. USCIS has provided only the following possible actions for continued use of the 8/21/25 version of the form:
- Accept the 08/21/25 edition of Form I-765 if it is postmarked or electronically submitted before Sept. 15, 2026;
- Reject the 08/21/25 edition of Form I-765 if it is postmarked or electronically submitted on or after Sept. 15, 2026; and
- Only accept the 09/15/26 edition of Form I-765 if it is postmarked or electronically submitted on or after Sept. 15, 2026.
New H-1B Fee Proposed
DHS published a Notice of Proposed Rulemaking to implement a $103,265 fee for cap subject H-1B petitions effective for fiscal year 2028. A similar $100,000 H-1B visa fee was struck down on June 8, 2026 by the U.S. District Court for the District of Massachusetts as a tax that was not authorized by Congress. The new fee cities DHS’s authority to collect fees to fund its asylum-related operations. Also, the new fee applies to all cap subject H-1B petitions where the overturned fee applied to any H-1B petition that required a visa to be issued abroad. The new fee is also likely to be challenged. Although it applies in fiscal year 2028, it will affect visa petitions starting in March 2027. Employers should reach out to their immigration legal counsel to determine the effect of the new fee.
Action Items
- Use I-765 with revision date 9/15/2026 as of September 15, 2026.
- Consult with immigration legal counsel regarding impact of proposed H-1B fee for cap subject petitions.
USCIS Updates Policy Manual Guidance
Effective September 18, 2026, the U.S. Citizenship and Immigration Services (USCIS) has updated its policy manual section on the public charge standard. Under the Immigration and Nationality Act (INA), an applicant for a visa, admission, or adjustment of status is inadmissible if a reviewing officer believes they are likely to become a public charge at any time for shelter, food, or healthcare. Under a 2022 Biden-era rule, officers were limited to the following factors to determine if an applicant is likely to become a public charge: age, health, family status, financial status, education/skills, affidavit of support, and receipt of specified benefits. The new guidance expands on the factors and ads cash and noncash benefits including, but not limited to, public or assisted housing, Medicaid, Supplemental Nutrition Assistance Program (SNAP), and other food assistance programs. Reviewing officers have wide latitude under this rule to find an applicant inadmissible on or after September 18, 2026.
DHS Adds Invalidated EADs to E-Verify
Effective August 11, 2026, the Department of Homeland Security expanded the E-Verify Status Change Report to include Employment Authorization Documents (EADs) which have been invalidated. This follows multiple changes to Temporary Protected Status (TPS) designations as well as changes to Form I-485 and Form I-589. The Status Change Report will now refresh every two weeks with updated EAD invalidations. E-Verify employers should make sure trained personnel are monitoring the Status Change Report regularly for updated EAD status.
Proposed Elimination of 60-Day Grace Period for Certain Nonimmigrants
The Department of Homeland Security (DHS) submitted a proposed rule to the Office of Management and Budget on August 6, 2026 to end the discretionary 60-day grace period for nonimmigrant workers after a job has ended. The details of the proposal have not yet been published in the Federal Register. Currently individuals with E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN visas have up to 60 days after the end of their job to find new employment or make alternate immigration arrangements. The elimination of this grace period would increase pressure for such workers to find new employment or make decisions to depart the U.S. For now, absent specific information about the rule, there is little for employers to change. However, they should begin consulting with immigration legal counsel to determine impacts to their workforce, especially for recruiting purposes and restructuring.
USCIS Updates EAD Expiration Dates for El Salvador and Ukraine
U.S. Citizenship and Immigration Services (USCIS) updated the Employment Authorization Document (EAD) expiration dates for Temporary Protected Status (TPS) designations for El Salvador and Ukraine. TPS for El Salvador was set to terminate on September 9, 2026. Employers with TPS workers from El Salvador should verify their EAD expiration date with the worker’s EAD and the USCIS notice extending their EAD, if applicable. For Ukraine, TPS expires October 19, 2026. Employers should follow the same process for verifying EAD expirations. Form I-9s should also be updated in cases where EADs were expired but workers received a USCIS notice extending their EAD.
California Issues Guidance on TPS and Work Authorization
On September 3, 2026, the California Department of Justice issued guidance to employers following the U.S. Supreme Court’s decision in Mullin v. Doe to uphold the Department of Homeland Security’s (DHS) right to terminate Temporary Protected Status (TPS) designation for several countries. The guidance reiterates that despite changes to TPS designation, employers are still obligated to follow federal and California employment laws with respect to workplace rights. The guidance instructs employers to follow employment verification requirements, that employment authorization may remain valid despite the expiration date printed on the work permit, workers have the right to choose which acceptable documents they can present, and to follow workplace anti-discrimination and anti-retaliation laws.
Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2026 ManagEase