IMMIGRATION UPDATE – February 3, 2026
HEADLINES
FY 2027 H-1B Cap Initial Registration Period Opens March 4 – The initial registration period for the Fiscal Year 2027 H-1B cap will open at 9:00AM Pacific on Wednesday, March 4 and run through 9:00 AM Pacific on Thursday, March 19, 2026.
DOL-DHS Temporary Rule Will Increase H-2B Visa Limit in FY 2026 – The Departments of Labor and Homeland Security plan to issue up to an additional 64,716 H-2B visas for this fiscal year. H-2B visas are for temporary, non-agricultural jobs which are seasonal or based on the employer’s peak-load or intermittent needs. Examples include jobs at hotels, ski resorts, golf courses, landscaping, and seasonal construction work.
Ninth Circuit Rules That Secretary Noem Exceeded Her Authority with Respect to Venezuelan and Haitian TPS – The U.S. Court of Appeals for the Ninth Circuit ruled that Homeland Security Secretary Kristi Noem exceeded her statutory authority in her vacatur and termination of Venezuela’s Temporary Protected Status (TPS) designation and her partial vacatur of Haiti’s TPS designation. The Ninth Circuit affirmed the district court’s setting aside of the Venezuelan vacatur and termination, and the Haitian partial vacatur.
Trump Administration Launches ‘Gold Card’ Site – The site includes application information and questions and answers about the Trump Gold Card.
DETAILS
FY 2027 H-1B Cap Initial Registration Period Opens March 4
On January 30, 2026, U.S. Citizenship and Immigration Services (USCIS) announced that the initial registration period for the Fiscal Year (FY) 2027 H-1B cap will open at noon ET on March 4 and run through noon ET on March 19, 2026.
During that period, prospective H-1B cap-subject petitioners and representatives must use a USCIS online account to register each beneficiary for the selection process and pay the associated $215 H-1B registration fee. H-1B petitioning employers who do not have a USCIS online account must create an organizational account. Representatives may add company clients to their accounts at any time, but both representatives and employers must wait until March 4 to enter beneficiary information and submit registrations and the fee.
Selections will take place after the initial registration period closes. USCIS said it will send selection notifications by March 31, 2026, via users’ USCIS online accounts, to prospective petitioners and representatives who have at least one registration selected.
New for the FY 2027 Cap Season
The new H-1B selection process prioritizes allocating visas to higher-skilled and higher-paid workers. For the FY 2027 H-1B cap season, USCIS will conduct a weighted selection if it receives registrations for unique beneficiaries during the initial registration period that exceed the cap. If USCIS does not receive registrations for enough unique beneficiaries, it will select all registrations for unique beneficiaries that were properly submitted in the initial registration period.
Pursuant to the Presidential Proclamation, Restriction on Entry of Certain Nonimmigrant Workers, a petitioner whose registration is selected and who is otherwise eligible to file an H-1B cap-subject petition “may need to pay an additional $100,000 fee before filing the H-1B petition as a condition of eligibility,” USCIS noted.
Additional information on the electronic registration process is available on the H-1B Electronic Registration Process page. USCIS said it will update the page before the initial registration period.
DOL-DHS Temporary Rule Will Increase H-2B Visa Limit in FY 2026
The Departments of Labor (DOL) and Homeland Security (DHS) plan to publish a temporary rule on February 3, 2026, to exercise their time-limited Fiscal Year (FY) 2026 authority to issue up to an additional 64,716 H-2B visas for this fiscal year. The supplemental visas will be available only to U.S. businesses “that are suffering or will suffer impending irreparable harm, i.e., those facing permanent and severe financial loss, as attested by the employer,” an advance copy of the rule states. The supplemental visas “will be distributed in three allocations based on the petitioner’s start date of need through the end of the fiscal year”:
- 18,490 immediately available visas limited to returning workers, that is, those who were issued an H-2B visa or otherwise granted H-2B status in FYs 2023, 2024, or 2025, and who will be available for eligible employers with a need for workers to begin work between January 1, 2026, through March 31, 2026. Employers must file these petitions no later than 14 days after the second half of the statutory cap is reached;
- 27,736 visas, plus any unused visas from the first allocation, limited to returning workers, that is, those who were issued an H-2B visa or otherwise granted H-2B status in FYs 2023, 2024, or 2025, and who will be available for eligible employers with a need for workers to begin work between April 1, 2026, and April 30, 2026. Employers must file these petitions no earlier than 15 days after the second half of the statutory cap is reached; and
- 18,490 visas, plus any unused visas from the first or second allocations, for those who will be available for eligible employers with a need for workers to begin work between May 1, 2026, and September 30, 2026. These petitions are exempt from the returning worker requirement. Employers must file these petitions no earlier than 45 days after the second half of the statutory cap is reached.
DHS said that it will not accept any H-2B petitions under provisions related to the FY 2026 supplemental numerical allocations after September 15, 2026, and will not approve any such H 2B petitions after September 30, 2026. The rule is effective from January 30, 2026, through September 30, 2026, except for the requirements at 20 CFR 655.69, which are effective from January 30, 2026, through September 30, 2029. Under the document retention requirements at 20 CFR 655.69, petitioners must retain documents and records demonstrating compliance with this rule for three years from the date of the attestation, and must provide the documents and records at the request of DHS or DOL.
Comments on the temporary rule will be accepted for 60 days from publication and can be submitted via the method noted in the rule.
Ninth Circuit Rules That Secretary Noem Exceeded Her Authority With Respect to Venezuelan and Haitian TPS
On January 28, 2026, the U.S. Court of Appeals for the Ninth Circuit ruled that Homeland Security Secretary Kristi Noem exceeded her statutory authority in her vacatur and termination of Venezuela’s Temporary Protected Status (TPS) designation and her partial vacatur of Haiti’s TPS designation. The Ninth Circuit affirmed the district court’s setting aside of the Venezuelan vacatur and termination, and the Haitian partial vacatur.
The Ninth Circuit noted that Secretary Noem vacated the prior administration’s extension of TPS for Venezuela through October 2, 2026, and terminated Venezuela’s TPS effective April 3, 2025. Secretary Noem also partially vacated the prior administration’s extension of Haiti’s TPS such that the designation would expire in August 2025 instead of February 2026. Among other things, the court noted that the plain text of the TPS statute provides that a TPS termination cannot be effective earlier than the expiration of the most recent previous extension.
The court said that Secretary Noem’s actions “have left hundreds of thousands of people in a constant state of fear that they will be deported, detained, separated from their families, and returned to a country in which they were subjected to violence or any other number of harms. The Secretary’s actions fundamentally contradict Congress’s statutory design, and her assertion of a raw, unchecked power to vacate a country’s TPS is irreconcilable with the plain language of the statute.”
In a concurrence, Judge Salvador Mendoza, Jr., remarked on Secretary Noem’s “rushed and abnormal process” in vacating Venezuelan and Haitian TPS, leading to a “preordained outcome,” and underscored “why we must not permit government agencies to justify their actions with pretext, especially when that pretext is cloaking animus on the basis of race or national origin.” He said that “Secretary Noem’s vacatur actions would fail on the independent ground that they were arbitrary and capricious in contravention of the [Administrative Procedure Act], as even a cursory review of the record indicates that her decisions were both preordained and rooted in pretext.” Noting that public statements by President Trump and Secretary Noem were founded on “racist stereotyping based on country of origin,” he said, “This case presents one of the rare situations where the strong showing of bad faith needed to look beyond the administrative record is easily met.”
Trump Administration Launches ‘Gold Card’ Site
The Trump administration has launched its “Trump Gold Card” website. The site includes application information and questions and answers about the Trump Gold Card. It explains that for a $15,000 “processing fee” and, after background approval, a contribution of $1 million, an individual can “receive U.S. residency in record time.” The site includes information for individuals and businesses.
The site also includes information on the “Trump Platinum Card,” which it says is coming soon. The site says that foreign nationals can sign up now to secure their places on the waiting list. When launched, and upon receipt of a $15,000 “processing fee” and a $5 million contribution, “they will have the ability to spend up to 270 days in the United States without being subject to U.S. taxes on non-U.S. income.”
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PUBLICATIONS AND ITEMS OF INTEREST
Know your rights. A number of organizations, including the American Civil Liberties Union (English and Spanish), the Immigrant Legal Resource Center, Catholic Legal Immigration Network, Inc., the National Immigrant Justice Center, and the Asian Law Caucus, have published resources highlighting immigrants’ rights in the United States, including “know your rights” information and what documents they may want to carry when traveling inside the United States. ACLU of Northern California has also released Know Your Rights: U.S. Airports and Ports of Entry.
See also Information for Employers — “What to Do if Immigration Comes to Your Workplace” : NELP_EmployerGuide_Eng_2025_Final-.pdf. Note the important distinction between administrative and judicial warrants, and a public lobby versus private areas of a business.
IMMIGRATION AGENCY INFORMATION/PROCESSING TIMES
U.S. Customs and Border Protection:
Accessing I-94 Information: https://i94.cbp.dhs.gov/I94/#/home
Department of Labor:
PERM and Prevailing Wage Processing Times: https://flag.dol.gov/processingtimes
State Department:
Visa Appointment Wait Times: https://travel.state.gov/content/travel/en/us-visas.html
Monthly Immigrant Visa Bulletin: https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html
U.S. Citizenship and Immigration Services:
Processing Times: https://egov.uscis.gov/processing-times/
Case Status Online: https://egov.uscis.gov/
GOVERNMENT ENGAGEMENTS
E-Verify webinars: E-Verify has added a webinar with a focus on acceptable documents for Form I-9 verification, and has updated its calendar of webinars.
SAVE webinars: Systematic Alien Verification for Entitlements (SAVE) has updated its calendar of webinars.
Immigration agency X (formerly Twitter) accounts:
- EOIR: @DOJ_EOIR
- ICE: @ICEgov
- Study in the States: @StudyinStates
- USCIS: @USCIS
Alliance of Business Immigration Lawyers: ABIL is available on X (formerly Twitter): @ABILImmigration
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This information was prepared in collaboration with ABIL, the Alliance of Business Immigration Lawyers, comprised of twenty U.S. immigration lawyers who head some of the top immigration practices in the country. Larrabee Albi Coker LLP is an active member of ABIL.
Legal Disclaimer: This information is provided for informational purposes only and does not substitute for legal advice based on the circumstances of a specific matter.