- Where are we with form I-485?
Viability of the current 9/18/26 edition of the I-485 form is dependent upon the result of litigation over the public charge rule as the form was updated to ask specific questions concerning “means tested public benefits” received instead of merely concentrating on the receipt of SSI and TANF (Temporary Assistance to Needy Families). Three cases are presently before Judge Ronnie Abrams of the Southern District of New York challenging the public charge rule – State of New York v. DHS, No. 26-cv-07978; City of New York v. DHS, No. 26-cv-07982; Make the Road New York v. DHS, No. 26-cv-08129. The parties appear to be moving on parallel tracks towards a merits determination in 2027 with no emergency requests for stay of the rule. So it appears that the current edition of the I-485 will remain in play for some time. An AILA (American Immigration Lawyers Association) practice alert notes the differing OMB expiration dates of the form – 10/31/27, 3/31/27, and 2/28/27 – and that the current date is 2/28/27. It has received reports of rejections which identify the OMB expiration date as the reason for the rejections. It appears obvious that such rejections are improper as an OMB expiration date should have no effect upon the acceptability of the form as long as the edition date is correct. USCIS should make this clear to all the service centers & lockboxes immediately if it has not already done so. Until there is further clarification, I-485 applicants should use the 9/18/26 edition with OMB expiration date 2/28/27.
- Where are we with forms I-539 and I-765?
These two forms’ edition dates also depend upon ongoing litigation. They are directly related to the F, I, J abolishment of duration of status rule that was to have come into effect on September 15, 2026, with both edition forms changing to 9/15/26. Instead, Massachusetts federal District Judge Dennis F Saylor in Presidents’ Alliance on Higher Education and Immigration v. DHS, No. 1:26-cv-13799 (D. Mass.), https://www.nafsa.org/sites/default/files/media/document/2026-09-14%20District%20Judge%20dckt%2050_0.pdf granted a nationwide preliminary injunction on September 14, 2026, blocking the rule from taking effect. The government then requested that district-court proceedings be stayed pending its appeal to the U.S. Court of Appeals for the First Circuit, or alternatively that the district court establish an expedited schedule for further proceedings. The Court of Appeals set a briefing schedule on October 9 which will take at least 60 days for government brief, plaintiff response, and 10 days for reply. The District Court also took action on October 19 to expedite with November 2 set as the deadline for responsive briefing. In the meantime, USCIS will only accept the 8/28/24 edition of form I-539 and 8/21/25 edition of form I-765.
- DHS ordered to take biometrics of detained.
Detainees filing petitions or applications with USCIS have been unable to have their biometrics taken since December 2025 and had petitions or applications denied for the absence of biometrics. USCIS announced on December 5, 2025, that with the exception of applications and petitions filed with the Executive Office for Immigration Review, it would cease taking fingerprints and photos of those in custody. https://www.uscis.gov/newsroom/alerts/uscis-updates-policy-on-biometrics-for-detainees. In the DC federal court, District Judge Amir H. Ali in J.Z et al. v. DHS, CIV 26-01510 (AHA) on October 7, 2026, blocked the government’s action in a memorandum opinion and order staying the new policy including the agency press release and policy alert, and implementing agency actions, including the policy manual revisions and rescission of the intra-departmental agreement requiring ICE to collect biometrics from detained people with pending USCIS applications. https://www.documentcloud.org/documents/28731202-ali-biometric-data-order/ The government is to file a status report by October 21, 2026, apprising the court of compliance with the order. It should be noted that the plaintiffs moved for both a stay of the biometrics policy and a preliminary injunction, but the court did not grant the preliminary injunction saying that the plaintiffs had not shown that additional relief was necessary on the current record.
- Exorbitant fines for failure to depart ruled unlawful.
There is hope against these exorbitant fines up to $1.8 million for immigrants’ failure to depart after an order of removal. In the US District Court in Massachusetts, Maria L & Nancy M v. Mullin, CIV 25-13471-GAO, District Judge George O’Toole stayed the government’s use of exorbitant fines in an opinion and order on 9/30/26 (Nancy M being issued a fine of $1.82 million for her purportedly willful failure to depart even though she was in the country under an order of supervision). https://www.publicjustice.net/wp-content/uploads/2025/11/113-decision-and-order-granting-stay.pdf The court cited the government’s failure to give a period of notice and comment as the rule was promulgated as an interim final rule (IFR) and that there was no individualized assessment provided for whether the aliens’ failure to depart was willful or voluntary. Also to be noted is Northern California District Judge John Tigar’s 9/1/26 decision giving preliminary injunctive relief in Ye v. U.S. Department of Homeland Security, No. 4:26-cv-06417-JST (N.D. Cal.) to another individual assessed a $1.82 million fine in which the judge among other findings ruled that the fine fell within the excessive fines clause of the Eighth Amendment – that the civil penalties authorized by INA §274D are subject to the Eighth Amendment’s prohibition against excessive fines. https://docs.justia.com/cases/federal/district-courts/california/candce/4%3A2026cv06417/473067/36?utm_source=chatgpt.com. It remains to be seen what the future holds as DHS finalized the fine regulation on October 14 making a change from the interim final regulation with limited modification allowing late appeals due to mail delivery problems. https://www.federalregister.gov/documents/2025/06/27/2025-11965/imposition-and-collection-of-civil-penalties-for-certain-immigration-related-violations. It could argue that the comments considered between the IFR and final rule satisfy the requirement for notice and comment, but may continue to be hard-pressed to defend against plaintiffs’ multiple arguments that DHS must still establish the statutory element of willfulness; that a penalty remains subject to the excessive fines clause; that the agency must provide constitutionally adequate procedures; and that its determination must withstand arbitrary and capricious review under the Administrative Procedures Act.