Search results for: U.S. Immigration Policy

On Thursday, the U.S. House of Representatives began debate on two immigration bills aiming to enhance border and interior enforcement of immigration law, among other matters. The two bills were the result of House Republican Majority discussion on approaches to effectively address the Administration’s call to secure America’s borders and provide for Deferred Action Childhood Arrival (DACA) participant status in the United States.

Both bills were similar in major concepts with differences in method of “wall” funding and treatment of DACA and DACA-related DREAMer populations. The two bills, HR 4670, Securing America’s Future Act, and HR 6136, Border Security and Immigration Reform Act, were considered under closed rules providing for up and down votes without amendment.

The House rejected HR 4760, Securing America’s Future Act, by a vote of 193-231 on Thursday. After this bill failed to gain the majority to pass and with many questions surrounding the Border Security and Immigration Reform Act, House Leadership held a lengthy conference education session late Thursday while delaying any further votes on the Border Security and Immigration Reform Act until, reportedly, “sometime next week.”

As of this writing, House Leadership has not rescheduled consideration of HR 6136, Border Security and Immigration Reform Act. Please check back for additional updates.

For more information on U.S. Immigration Policy, click here.

In this timely episode of Immigration Insights, part of Greenberg Traurig’s Big Law Redefined podcast, host Kate Kalmykov is joined by Laura Rabinowitz, international trade and customs practice shareholder, for an in-depth discussion on the shifts in U.S. tariff policy under the second Trump administration.

Laura explains how the new country-specific tariffs are reshaping global supply chains, impacting sourcing decisions, and introducing unprecedented compliance challenges for importers.

The conversation covers practical strategies for businesses to consider to protect themselves, reduce duty exposure, and renegotiate production agreements in the face of heightened enforcement and evolving rules of origin.

Kate and Laura also explore the intersection of trade and immigration, the broader economic implications for consumers, and what the future may hold for U.S. manufacturing and global trade.

Click here to listen to the full episode.

As reported last week, The U.S. House of Representatives (House) continued negotiating and debating U.S. immigration policy this week. After intense negotiations that lauded a favorable Tweet and Statement of Administration Policy supporting HR 6136, Border Security and Immigration Reform Act, the bill failed passage by 121-301.

The action today concludes the scheduled House votes on immigration policy.  Given no satisfactory conclusion to the matters of debate (Border Wall funding, DACA participants status etc.), we expect continued discussion on Capitol Hill.  Please check back for information as events unfold.

 

With annual appropriations for the Department of Homeland Security (DHS) having lapsed on Feb. 14, 2026, immigration stakeholders are again navigating the practical consequences of a DHS-specific shutdown. Despite the current shutdown, most DHS immigration functions continue, but the impact may vary across agencies and programs. U.S. Citizenship and Immigration Services (USCIS) and the Department of Labor (DOL) functions also remain operational. 

Big Picture: ‘Shutdown’ Does Not Mean Stop

During a DHS shutdown, roughly 90% of the department’s more than 260,000 employees are required to keep working, often without pay. Many immigration functions are deemed “essential,” while others are insulated by separate funding streams such as filing fees or the One Big Beautiful Bill Act (OBBBA). For businesses, that means core adjudications and enforcement activities largely continue, even as certain programs pause.

USCIS: Largely Open with Program-Specific Caveats

Because USCIS is primarily funded by the payment of filing fees submitted with immigration applications, USCIS processing continues during a shutdown. Employers may expect to proceed with routine business immigration filings without disruption.

However, programs that depend on appropriated funds might be vulnerable to disruption:

  • E-Verify Program: Historically, E-Verify relied on federal funding and was unavailable during government shutdowns. However, during the last government shutdown in October 2025, approximately one week later, E-Verify was restored while the shutdown continued. E-Verify remains operational during the current DHS shutdown. In the event of the system’s suspension during a shutdown, alternate I-9 remote document review procedures are available as employers must still complete the I-9 verification steps within the three-day window. USCIS has previously confirmed that employers may continue using the new alternate review process when E-Verify is temporarily unavailable, and there has been no indication that this policy will change. Once the system resumes, cases should be created promptly. 
  • USCIS Filings: Because USCIS is primarily a fee-funded agency, applications and petitions may continue to be filed and processed. In the past, USCIS has stated that it may excuse late filings for certain immigration benefits if the government shutdown directly caused the delay, such as when other agencies like the DOL temporarily suspended operations. For example, USCIS has accepted late H-1B Form I-129 petitions when the required certified labor condition applications (LCAs) from the DOL could not be obtained on time and included with the filing. In these situations, employers and their counsel may wish to document any shutdown-related obstacles that prevented a timely filing.

For specific programs:

  • EB-5 Immigrant Investor Regional Center Program: The EB-5 program continues, as it is authorized through Sept. 30, 2027, and is not impacted by the current DHS funding lapse.
  • Special Immigrant Religious Worker (EB-4) Program: While the EB-4 category is tied to appropriations, the president signed into law H.R.  7148, extending the EB-4 non-minister special immigrant religious worker program through Sept. 30, 2026. 

US Customs and Border Protection (CBP): Ports Stay Open, But Discretionary Processing May Slow

CBP inspection and law enforcement personnel are treated as essential, so ports of entry remain open and passenger processing continues. However, the Transportation Security Agency (TSA), which is under DHS, is impacted as the partial shutdown stretches into the second week.

  • TSA PreCheck: A government funded program that provides expedited airport security screening for low-risk travelers continues to remain operational with no change for the traveling public, despite DHS briefly suspending TSA PreCheck Feb. 21. 
  • Global Entry: CBP’s Trusted Traveler Program that helps speed up the customs process for pre-approved travelers when reentering the United States remains suspended as of Feb. 22. Applications typically filed at the border – such as certain nonimmigrant adjudications or discretionary benefits – may experience delays.

DOL and US Department of State (DOS): Insulated for FY 2026

Not all key immigration agencies are affected by the current DHS funding lapse.

  • DOL: The DOL is funded through the remainder of FY 2026. Unlike the last government shutdown in October 2025, PERM processing, prevailing wage determinations, and LCAs may continue under normal operations, absent separate disruptions.
  • DOS: The DOS is also funded through FY 2026. Consular posts may remain open and visa processing should continue, although local conditions or operational decisions might create delays.

Immigration and Customs Enforcement (ICE)

ICE employees are considered “essential,” and the agency’s enforcement and deportation operations received a single lump sum of $29.9 billion from the OBBBA. ICE continues enforcement operations, and the ICE Student and Exchange Visitor Program (SEVP) offices are unaffected since fees fund SEVP. Certain compliance activities that include I-9 audits and Notices of Inspection also continue as compliance obligations do not pause during a shutdown.

Takeaways for Employers and Practitioners

The current DHS shutdown is less about a complete halt and more about targeted disruptions and heightened uncertainty. Employers and immigration practitioners may wish to:

  • Continue filing USCIS petitions and applications on normal timelines while documenting any shutdown-related barriers to timely filing.
  • Prepare for possible E-Verify outages or delays by training HR on alternate I-9 remote verification procedures and ensuring internal policies reflect the latest USCIS guidance.
  • Advise traveling employees and business visitors that ports remain open but discretionary processing at the border may be delayed. Employees may wish to carry complete documentation of their immigration status, especially when traveling internationally.
  • Monitor sunset-tied programs and consider accelerated filing strategies where appropriate.

While congressional discussions around DHS funding continue, careful planning may reduce operational disruption for businesses and individuals relying on the U.S. immigration system.

On Jan. 1, 2026, U.S. Citizenship and Immigration Services (USCIS) issued a new policy memorandum—PM-602-0194: Hold and Review of USCIS Benefit Applications Filed by Aliens From Additional High-Risk Countries—that has had wide-ranging effects on immigration benefit processing. This guidance builds on the expanded travel restrictions under Presidential Proclamation 10998 (PP 10998), Restricting and Limiting the Entry of Foreign Nationals to Protect the Security of the United States, signed on Dec. 16, 2025, and effective Jan. 1, 2026.

PM-602-0194 directs USCIS officers to take three main actions:

  1. Place a holdon all pending benefit applications, subject to certain exceptions and regardless of entry date, for nationals of the countries listed in PP 10998, pending a comprehensive review;
  2. Conduct a comprehensive review of all policies, procedures, and screening and vetting processes for benefits requests for nationals of countries listed in PP 10998; and
  3. Conduct a comprehensive re-review of approved benefit requests for nationals of countries listed in PP 10998 that were approved on or after Jan. 20, 2021.

Now that almost 60 days have passed since the announcement, applicants may be seeing the effects of the policy in delayed applications, and in some cases requests for additional evidence that USCIS might consider in determining whether to exercise favorable discretion.

Who Is Impacted?

The hold and comprehensive review now apply to nationals of all countries listed in PP 10998. This expanded list includes (among others):

  • Afghanistan
  • Angola
  • Antigua and Barbuda
  • Benin
  • Burkina Faso
  • Burma (Myanmar)
  • Chad
  • Côte d’Ivoire
  • Cuba
  • Dominica
  • Equatorial Guinea
  • Eritrea
  • Gabon
  • The Gambia
  • Haiti
  • Iran
  • Laos
  • Libya
  • Malawi
  • Mali
  • Mauritania
  • Niger
  • Nigeria
  • Senegal
  • Sierra Leone
  • Somalia
  • South Sudan
  • Sudan
  • Syria
  • Tanzania
  • Togo
  • Tonga
  • Turkmenistan
  • Venezuela
  • Yemen
  • Zambia
  • Zimbabwe

Individuals with Palestinian Authority–issued or endorsed travel documents are also included. This means the policy applies based on nationality, country of birth, or citizenship acquired through Citizenship-by-Investment (CBI) programs.

Exceptions

PM-602-0194 allows USCIS to continue adjudicating certain categories of benefit requests, including:

  • Individuals with a pending Form I-90, Form N-565, and Form N-600;
  • “Benefit requests that are a priority for law enforcement and where [Immigration and Customs Enforcement] has requested that USCIS take adjudicative action to uphold public safety or national security;”
  • Form I-765, categories(c)(11) for an alien paroled into the United States in the public interest or temporarily for emergency reasons and (c)(14) for an alien granted deferred action only when the request comes from law enforcement because the noncitizen is assisting law enforcement;
  • Initial Form I-765, category (c)(8) for an asylum applicant (with a pending asylum application) who filed for asylum on or after Jan. 4, 1995;
  • Benefit requests for individuals whose entry would serve a United States national interest;
  • Benefit requests for athletes or members of an athletic team, including the coaches, persons performing a necessary support role, and immediate relatives for the purpose of participating in the World Cup, Olympics, or other major sporting event as determined by the secretary of state;
  • Benefit requests, or associated underlying benefits, for any programs that are terminated or discontinued as a result of an executive order, proclamation, Federal Register notice, or directive issued by the president, the secretary of homeland security, or the USCIS director; and
  • Decisions to automatically terminate automatic or ancillary benefit requests related to when an individual is granted legal permanent resident status or becomes a naturalized citizen.

The exceptions to the policy are limited and may not apply to many applicants. Moreover, almost 60 days have passed since this policy was announced and there are no further updates as to when these applications may go back into normal processing. Without any meaningful update from USCIS, applicants from the affected countries may continue to experience significant delays and/or additional USCIS scrutiny in the adjudication of their cases, irrespective of whether the applicant or beneficiary is inside or outside the United States.

The U.S. State Department has announced a temporary halt on immigrant visa processing for applicants from 75 countries, effective Jan. 21, 2026. This pause comes as the department reassesses its vetting procedures under existing immigration law, specifically focusing on the public charge rule — a determination of whether an applicant is likely to require long-term financial or healthcare support from the U.S. government.

Who Does This Impact?

The full list of 75 countries comprises Afghanistan, Albania, Algeria, Antigua and Barbuda, Armenia, Azerbaijan, Bahamas, Bangladesh, Barbados, Belarus, Belize, Bhutan, Bosnia, Brazil, Burma, Cambodia, Cameroon, Cape Verde, Colombia, Cote d’Ivoire, Cuba, Democratic Republic of the Congo, Dominica, Egypt, Eritrea, Ethiopia, Fiji, Gambia, Georgia, Ghana, Grenada, Guatemala, Guinea, Haiti, Iran, Iraq, Jamaica, Jordan, Kazakhstan, Kosovo, Kuwait, Kyrgyzstan, Laos, Lebanon, Liberia, Libya, Macedonia, Moldova, Mongolia, Montenegro, Morocco, Nepal, Nicaragua, Nigeria, Pakistan, Republic of the Congo, Russia, Rwanda, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Senegal, Sierra Leone, Somalia, South Sudan, Sudan, Syria, Tanzania, Thailand, Togo, Tunisia, Uganda, Uruguay, Uzbekistan, and Yemen.

Why the Pause?

The directive aims to prevent the entry of foreign nationals deemed likely to rely on U.S. welfare or public benefits. This move follows increased scrutiny of public charge rules and broader immigration policy changes under the current administration.

Key Points for Applicants and Employers

  • The government will pause visa decisions starting Jan. 21, 2026.
  • Applicants from affected countries may be able to expect delays and should consider alternative strategies.
  • Employers relying on foreign talent may need to adjust timelines and explore contingency plans.

What Happens Next?

The State Department may release more details soon. For now, applicants and businesses should stay informed and may wish to consult with immigration counsel to navigate this evolving situation.

Despite heightened scrutiny, evolving adjudication standards, and continued operational pressure on U.S. immigration agencies, 2026 may prove a viable — and even advantageous — year for U.S. employers to sponsor global talent. The employers who may see the greatest success might approach sponsorship strategically, plan well in advance, and incorporate lessons learned from government practices and policy shifts that emerged throughout 2025.

Rather than retreating from sponsorship, forward-thinking employers might use immigration as a workforce planning, retention, and risk-management tool. The following 26 practical, forward-looking considerations may aid employers, in-house counsel, human resources (HR), and global mobility teams in navigating employment-based immigration successfully in 2026.

Strategic Workforce Planning

1. Start immigration planning earlier — and gain flexibility
Longer processing times at U.S. Citizenship and Immigration Services (USCIS), the Department of Labor, and U.S. consulates make early planning essential. Beginning sponsorship discussions 12-24 months in advance may allow employers to sequence filings, preserve eligibility for multiple options, and avoid last-minute crisis filings driven by expiring status.

2. Use immigration as a talent-retention tool
Clear sponsorship roadmaps may help reduce employee uncertainty and improve retention. Employees who understand their long-term immigration strategy may prove more likely to stay engaged, productive, and committed — particularly in competitive or specialized roles.

3. Build parallel strategies where possible
Relying on a single visa category may increase risk. Where feasible, employers should consider parallel pathways (e.g., H-1B with O-1, L-1 with PERM initiation, or EB-2 alongside EB-1 evaluation) to preserve options if adjudication trends or visa bulletin movement shift unexpectedly.

4. Align immigration strategy with business objectives
USCIS adjudications are strongest when immigration filings reflect real business needs. Employers should consider positioning their immigration strategy to align with organizational growth, client demands, expansion plans, and leadership structures — not simply with individual employee preferences.

Nonimmigrant Visas: Opportunities in 2026

5. Treat the H-1B visa as one option — not the only option
While the H-1B lottery remains competitive, approval rates for well-documented petitions remain strong. However, employers may wish to avoid over-reliance on the H-1B and evaluate alternative classifications early for critical talent.

6. Use L-1 intracompany transfer visas strategically
For multinational employers, L-1A and L-1B visas remain powerful tools when structured correctly. Clear corporate documentation, well-defined managerial or specialized knowledge roles, and thoughtful job descriptions may be essential to avoid requests for evidence (RFEs) or denials.

7. Leverage the O-1 extraordinary ability visa for high-impact talent
O-1 adjudications continue to be favorable when evidence is curated strategically and presented through a compelling narrative. Employers should consider the value of awards, press, publications, and industry recognition when building these cases.

8. Plan thoughtfully for remote and hybrid work
USCIS continues to scrutinize work location, supervision, and employer control. Employers must clearly document where work will be performed, who supervises the employee, and how company policies apply in remote or hybrid environments.

9. Maintain internal consistency across HR, payroll, and filings
Discrepancies between immigration filings, internal records, payroll data, and public-facing information remain a leading cause of RFEs. Consistency is one of the most effective — and simplest — ways to reduce potential adjudication friction.

PERM and Immigrant Sponsorship

10. View Permanent Labor Certification (PERM) as a long-term investment in workforce stability
Initiating PERM early may provide strategic flexibility, particularly during periods of visa retrogression or limited immigrant visa availability. Early filings may preserve adjustment of status eligibility and long-term workforce continuity.

11. Draft job descriptions that reflect real business need
Overly restrictive or generic job requirements might increase audit risk. Job descriptions that accurately reflect the employer’s operational needs, industry standards, and internal practices might best support both PERM and I-140 adjudications.

12. Treat prevailing wage determinations as planning tools
Prevailing wage results affect compensation strategy, budgeting, and employee retention. Employers might anticipate wage outcomes early in an effort to avoid last-minute compensation challenges or employee dissatisfaction.

13. Monitor visa bulletin trends proactively
Visa bulletin movement remains unpredictable. Strategic timing of I-140 filings and adjustment of status applications may preserve work authorization benefits and reduce uncertainty for sponsored employees.

14. Coordinate nonimmigrant extensions with immigrant filings
Thoughtful sequencing of extensions and immigrant filings may help avoid gaps in work authorization, reduce stress on employees, and shepherd continued compliance during long processing periods.

Government Technology and Adjudication Trends

15. Assume filings are reviewed holistically
USCIS increasingly reviews both an employer and an employee’s full immigration history. Prior filings, inconsistencies, and past representations matter. Parties may wish to prepare their case with awareness of the broader record.

16. Use RFEs as an opportunity to strengthen the case
While RFEs remain common, well-crafted responses sometimes result in approvals. Employers may wish to view RFEs as a chance to clarify the record, reinforce credibility, and address adjudicator concerns directly.

17. Prepare confidently for USCIS and Immigration and Customs Enforcement (ICE) site visits
Employers with organized records, trained managers, and clear compliance protocols generally navigate site visits smoothly. Advance preparation may reduce disruption and risk.

18. Treat compliance as an ongoing process
Employers may wish to maintain their I-9 compliance, public access files, and recordkeeping consistently — not only in response to audits. Ongoing compliance may reduce exposure and may help build institutional resilience.

19. Benefit from greater inter-agency clarity
While scrutiny has increased, adjudication standards are becoming more standardized across agencies. Employers who understand these patterns may be able to plan more predictably and defensibly.

Adjustment of Status and Consular Processing

20. Use adjustment of status filings strategically
Adjustment filings provide valuable benefits, including employment authorization and advance parole. These benefits might offer flexibility for both employers and employees during periods of immigrant visa backlog.

21. Plan international travel with foresight
Travel during pending filings requires careful coordination. Planning in advance may help avoid unintended abandonment of applications or delays in reentry.

22. Approach consular processing with preparation — not fear
Consular processing remains a reliable pathway when stakeholders have clear documentation and consistent records. Proactive preparation may minimize delays and refusals.

Compliance Considerations

23. Centralize immigration data and records
Centralized systems may help improve visibility, consistency, and compliance while reducing administrative burden and audit risk.

24. Train HR personnel and managers regularly
Well-informed HR teams and managers may prove critical to successful sponsorship. Regular training may aid in providing accurate representations and consistent practices across the organization.

25. Conduct proactive internal audits
Internal audits may help identify weaknesses before they become liabilities. Relevant entities should consider using internal audits as opportunities for improvement rather than fault-finding exercises.

26. Document decision-making and sponsorship rationale
Employers may wish to maintain internal records explaining why they made sponsorship decisions, including business need, role criticality, and selection criteria. Clear documentation may help support consistency across filings, strengthen responses in the event of audits or RFEs, and demonstrate good-faith compliance if government agencies later review sponsorship practices.

In 2026, employers that plan early, communicate clearly, and embrace compliance might successfully sponsor global talent while also gaining a durable competitive advantage.

The U.S. government is rapidly expanding its use of AI across immigration and visa adjudications. While much of the public discussion focuses on efficiency and enforcement, these developments carry concrete and immediate implications for employers sponsoring foreign talent and investors pursuing U.S. immigration pathways, including EB-5, E-2, L-1, H-1B, O-1, and employment-based green cards.

AI-driven systems such as StateChat, ImmigrationOS, and the U.S. Citizenship and Immigration Services (USCIS)’s Evidence Classifier are reshaping how immigration agencies review petitions, assess credibility, detect inconsistencies, and prioritize cases. As a result, employers and investors may assume that filings are increasingly scrutinized not only by human adjudicators, but also by automated tools trained to flag anomalies across large data sets.

StateChat: Faster Policy Interpretation, Less Adjudicator Discretion

The Department of State’s generative AI platform, StateChat, is designed to help consular officers and staff rapidly interpret internal policy guidance, draft communications, and analyze cables. Now widely deployed across the agency, the tool accelerates decision-making and reduces reliance on individualized judgment.

For employers and investors, this might mean:

  • Consular officers may apply policy guidance uniformly and rigidly, with less tolerance for creative or borderline arguments.
  • Inconsistent explanations across petitions, applications, or prior filings may be identified more quickly.
  • Novel fact patterns—common in emerging business models, startup structures, or complex investment vehicles—may face heightened scrutiny if they do not map cleanly onto existing policy frameworks.

Well-documented, policy-aligned submissions are becoming more critical, particularly for treaty investor visas, multinational executive transfers, and investor-backed enterprises.

ImmigrationOS: Expanded Data Integration and Risk Profiling

U.S. Immigration & Customs Enforcement’s ImmigrationOS platform aggregates data from multiple government and commercial sources to identify visa overstays, compliance gaps, and enforcement priorities. While positioned as a tool focused on high-risk individuals, its breadth has implications beyond enforcement actions.

For employers, ImmigrationOS underscores the importance of:

  • Maintaining accurate, consistent records across immigration filings, I-9s, payroll, and public-facing business information.
  • Ensuring that changes in job duties, worksite location, compensation, or corporate structure are properly reflected in amended or new filings.
  • Understanding that discrepancies may be detected algorithmically, not just during audits or site visits.

For investors, particularly EB-5 and E-2 applicants:

  • Source-of-funds narratives, business ownership records, and financial histories must align precisely across filings and databases.
  • Prior visa applications, travel histories, and business registrations may be cross-referenced in ways that were not previously routine.
  • Errors that once went unnoticed may now trigger delays, requests for evidence, or referrals for further review.

USCIS Evidence Classifier: Faster Review, Less Margin for Error

USCIS’s Evidence Classifier uses machine learning to automatically categorize and tag documents submitted with petitions. While intended to increase efficiency, it also standardizes how evidence is surfaced to adjudicators.

For petitioners, this might mean:

  • Disorganized, poorly labeled, or inconsistently presented evidence may be misunderstood or deprioritized.
  • Key documents that do not clearly align with expected categories may receive less attention.
  • Adjudications may move faster, leaving less opportunity to cure deficiencies through discretionary review.

Employers filing high-volume cases or investors submitting document-intensive petitions should consider precision in document organization, naming conventions, and explanatory exhibits.

Strategic Takeaways for Employers and Investors

As AI becomes embedded in immigration adjudications, the practical impact is clear:

  • Consistency matters more than ever—across filings, agencies, and years.
  • Data hygiene is critical—errors, omissions, or informal practices may create risk.
  • Policy-aligned narratives might outperform creative ones, particularly in adjudications automated tools influence.
  • Preparation should anticipate machine review, not just human judgment.

AI may speed adjudications, but it also reduces tolerance for ambiguity. Employers and investors who approach immigration strategy with rigor, documentation discipline, and forward-looking compliance planning may be best positioned to navigate this evolving landscape. The future of U.S. immigration adjudications is not just digital—it is algorithmic. Understanding that shift is now a business and investment imperative.

Laura Foote Reiff, shareholder in the Northern Virginia and Washington, D.C. office and co-founder of the firm’s Business Immigration & Compliance Practice, moderated a policy discussion at the U.S. Chamber of Commerce on Nov. 6, 2025, focused on immigration reform and workforce needs. 

The panel examined the new administration’s recent immigration policy changes, current legislative proposals in Congress, and their impact on employers facing ongoing workforce shortages. Discussion centered on practical, business-driven solutions to modernize the immigration system and support U.S. economic competitiveness. 

Laura is chair of the chamber’s immigration subcommittee and is also chair of the Essential Worker Immigration Coalition (EWIC) — a business coalition advocating for sensible, employment-focused immigration reform. 

On Sept. 29, 2025, the U.S. Department of Transportation issued an interim final rule that alters eligibility for commercial driver’s licenses (CDLs) and commercial learner’s permits (CLPs) for nonimmigrant workers. Most notably, individuals who hold Employment Authorization Documents (EADs)—including asylum seekers, DACA recipients, TPS holders, and those with pending adjustment of status (green card applications)—are now excluded from obtaining or renewing CDLs and CLPs.

This marks a departure from longstanding practice. Historically, EAD holders have been recognized as lawfully authorized to work in the United States across a wide range of industries, including commercial driving. The new rule restricts CDL/CLP eligibility to those in specific employment-based nonimmigrant statuses such as H-1B, L-1, O-1, and E-2, and requires states to verify status via the SAVE system and match license expiration to immigration status. Employees in the L-1A Multinational Manager or Executive category and the O-1 Extraordinary Ability Category would be unlikely to work in the commercial driving space.

The rule was prompted by the Federal Motor Carrier Safety Administration’s (FMCSA) review of fatal crashes involving non-domiciled drivers and findings of state-level compliance failures. However, the implications extend beyond the transportation sector. This shift may raise concerns about the erosion of work authorization rights for EAD holders and set a precedent that might be replicated in other industries.

Employer Takeaways

  • Employers must verify that foreign national drivers hold appropriate immigration status and documentation.
  • EAD holders may no longer qualify for CDLs, requiring alternative roles or documentation.
  • Employers may wish to avoid tying immigration verification to hiring decisions to prevent discrimination claims.

What’s Next

  • Comments on the rule are due by Nov. 28, 2025.
  • Further guidance from FMCSA, Department of Homeland Security, and state agencies is expected.
  • Attorneys might consider proactively advising clients with foreign national drivers to prepare for disruptions.

This rule underscores the need for vigilant monitoring of regulatory changes and their potential impact on immigrant workers.