- Prediction on Second Round of H-1B Selections.
With the FY-2027 cap H-1B March selection completed, it appears from anecdotal evidence that the selection percentages as set out by USCIS in the weighted wage rule giving more opportunities (more lottery balls) to those organizations willing to pay beneficiaries on a higher wage level were incorrect. It had estimated odds for this year of level I – 15.29%, level II – 30.58%, level III – 45.87%, and level IV – 61.16%. (page 60948 of the Federal Register final rule, https://www.govinfo.gov/content/pkg/FR-2025-12-29/html/2025-23853.htm.) We believe that the final statistics will show higher percentages of approval. On the possibility of a second round of selections in July, we believe that there is a very distinct chance of this occurring. This depends upon whether many organizations actually go through with submitting H-1B petitions by June 30, 2026. On the one hand, there would appear to be more incentive for employers to file since they have already paid a $215 registration fee. On the other hand, some employers may have boxed themselves in with wages and SOC codes that they cannot realistically support. Also, it may well be that many organizations submitted H-1B registrations without fully taking into account or hoping that the $100,000 H-1B fee attached to those beneficiaries who are overseas or fail to successfully obtain a change of status to H-1B will be overturned by the courts. They may reconsider their commitment to file if there is no rule change. On the present status of the fee litigation, the District Court in Chamber of Commerce of the USA v. U.S. Department of Homeland Security, No. 1:25-cv-03675 (D.D.C. Dec. 23, 2025), upheld the fee and an appeal is currently in the DC Court of Appeals. The other two major cases, State of California v. Noem, 1-25cv-13829 (D.Mass.) and Global Nurse Force v. Trump, 4:25-cv-08454 (N.D.Cal.) remain pending.
- Prevailing Wages Level I-Level IV Set to Leap Under Notice of Proposed Rulemaking.
The proposed regulation, “Improving Wage Protections for the Temporary and Permanent Employment of Certain Foreign Nationals in the United States”, Federal Register, vol. 91, No. 59 (3/27/26), https://www.federalregister.gov/documents/2026/03/27/2026-06017/improving-wage-protections-for-the-temporary-and-permanent-employment-of-certain-foreign-nationals will raise prevailing wage levels I-IV excessively. Level I wages would move from the 17th percentile to the 34th percentile, level II from 34th to 52nd, level III from the 50th to 70th, and level IV from the 67th to the 88th. In practice, level I would be the most impacted with an approximate 33% jump in wages redefining entry-level somewhere closer to experienced/junior mid-level; level II will see an approximate 24% increase, level III 21%, and level IV 22%. Arguments against the proposal include DOL not sufficiently justifying why these specific percentile thresholds are appropriate; that the new wages based on the percentiles do not correspond to “prevailing wages” and in many cases exceed it; that it eliminates true entry-level wages; and promotes economic harms such as offshoring and reduced hiring by employers. Comments can be made electronically before May 26, 2026, to the Federal eRulemaking portal: https://www.regulations.gov. Commenters should identify the agency’s name and public docket number ETA-2026-0001, explain the reasons for any recommended changes, and reference the specific section and wording being addressed where possible.
- Habeas Corpus And The Right to Bring Up Constitutional Issues to an Immigration Judge.
Mahmoud Khalil, the permanent resident Columbia University protester who was seized and transported to Louisiana and later freed by the District Court in New Jersey through habeas corpus, had the habeas decision overturned in a Third Circuit panel decision on January 15, 2026 https://www.aclu.org/cases/khalil-v-trump?document=Order-Vacating-District-Court-Judgement. The decision is a huge blow against the use of habeas corpus petitions in immigration settings, the court saying that the INA does not allow immigrants to challenge by habeas corpus issues that can be reviewed in a petition for review at the circuit courts following disposition of the case by the immigration court and BIA. The exception is where the claims behind the habeas petition are “now or never” ones that would otherwise never come up for review. His legal team is now petitioning for en banc review and asking the new Third Circuit judge, Emil Bove, to recuse himself on grounds that that he was likely involved in decisions related to the case while at the Department of Justice. He was previously President Trump’s personal attorney handling matters including the hush money criminal case before Mr. Trump appointed him to the Department of Justice position and subsequently nominated him to the Third Circuit judgeship https://www.nytimes.com/2026/04/01/nyregion/mahmoud-khalil-columbia-appeal.html . As a Trump loyalist, he will likely refuse to recuse himself.
A pivotal issue brought up by the dissent in the panel decision concerned the ability of the circuit court in Khalil’s case to meaningfully look at the claimed violation of his First Amendment free speech rights since the immigration judge (IJ) held that she lacked jurisdiction to rule on constitutional challenges and so there was no opportunity to develop the record on that issue, particularly as the IJ repeatedly denied his requests to do so. As disclosed in the dissent, the most interesting part of this discussion arose in oral argument before the panel when the government for the first time produced a September 2025 policy memorandum that immigration judges “may generally consider arguments arising out of constitutional law.” https://www.justice.gov/eoir/media/1413276/dl?inline Prior to the agency memo, it had always been taken for granted by both DHS attorneys and respondents that neither immigration judges nor BIA would take up constitutional questions.
So it would appear that this could be used by lawyers to ask IJs to actually rule on constitutional issues although most immigration judges as members of the executive branch would likely decline to do so. It also seems a pity that the memorandum was apparently used here merely to give cover to the government attorney arguing before the court.