By: Hector Chichoni, Esq. and Myrna Maysonet, Esq.
Overview
In 2026, employment‑based immigration is characterized by higher costs, reduced access to temporary work authorizations, intensified agency scrutiny, and greater instability for workers without permanent status. Employers must respond with robust compliance processes, proactive workforce planning, and early remediation to limit legal and operational risk.
Enforcement And Fraud Prevention Are Front and Center
Federal immigration agencies have shifted toward an enforcement posture focused on detecting fraud, protecting workers, and verifying compliance. Employers are seeing this play out in several ways:
- Significant new fees and surcharges are changing the economics of overseas hiring.
- Unscheduled worksite inspections and more frequent I‑9/E‑Verify reviews are now routine.
- Agencies are scrutinizing whether job duties, work locations, and wages actually match petition filings.
- These trends make regular internal audits and a clearly documented compliance program essential.
I‑9 And E‑Verify: New Editions, Retention, And Operational Points
USCIS issued an updated Form I‑9 (edition date 01/20/25; current expiration May 31, 2027). Employers using older electronic workflows should confirm their systems display the correct edition and expiration date by the vendor deadlines.
On record retention, USCIS has scheduled disposal of E‑Verify case records that are more than 10 years old; employers with historic cases must download the Historical Records Report before the agency’s disposal date for the affected year. Employers that rely on E‑Verify should now coordinate a records‑retention action plan.
It is a well-known fact that, because agency penalty schedules were updated in 2025, paperwork and substantive I‑9 violations may carry substantially larger fines than in prior years; employers should calculate exposure and remediate problems promptly.
E‑Verify Obligations and Program Fragmentation
E‑Verify remains optional for most private employers at the federal level, but is mandatory for federal contractors and in multiple states (i.e., Florida, South Carolina, etc.). Employers operating across jurisdictions must track state mandates and ensure remote‑inspection procedures (where permitted) are applied consistently and documented.
EAD Instability and Operational Impacts
Work‑authorization documents are being issued for shorter periods in many categories, increasing the frequency of reverification and renewal filings. Categories such as TPS and parole‑based EADs continue to carry uncertainty; employers should maintain up‑to‑date rosters of EAD‑dependent staff and file renewals at the earliest allowable date. These dynamics increase the risk of authorization gaps and related staffing interruptions.
Increased Site Visits and Cross‑Agency Oversight
It is not only ICE, CBP, USDOL (WHD), but also USCIS, through Fraud Detection and National Security (FDNS)’s worksite checks, which have become more prevalent, with officers verifying that actual duties, locations, and pay align with filings. At the same time, the USDOJ, EEOC, and USDOL continue to scrutinize hiring and reduction‑in‑force actions for potential disparate treatment where visa holders are concerned. Employers should ensure filings and internal job descriptions are accurate and defensible.
To reduce exposure, employers should, among other things:
- Build the new immigration fees assumptions into budget planning.
- Set up internal I‑9, E-Verify, and immigration‑file audits well before any agency visit.
- Create and train a dedicated audit/raid response team with written protocols.
- Revisit the company’s job classification protocols and procedures.
- Revisit prevailing wage determinations, Labor Condition Applications (LCA), and PERM applications.
- Revisit and update agreements with employees on reimbursement and stay-or-pay agreements, or Training Repayment Agreement Provisions (TRAPs). Recently, these have come under intense scrutiny, with the NLRB labeling them presumptively unlawful and some states restricting them due to their potential to entrap workers and limit job mobility.
Conclusion
The 2026 immigration landscape demands that employers move from reactive fixes to proactive governance. With rising fees, stricter verification, shorter EADs, and intensified agency scrutiny, organizations that prioritize documented compliance, routine internal audits, and coordinated workforce planning will reduce legal exposure and operational disruption.
Employers and sponsors should treat immigration risk as an enterprise issue: allocate budget for compliance and fees, train HR and hiring managers consistently, maintain accurate records for EAD‑dependent staff, and establish clear audit and response protocols. Taking these steps now will protect the business and preserve workforce continuity as enforcement and policy volatility continue.
