🍁 Happy Thursday! Today's newsletter is 1,270 words, a 6-min read. We’re back after taking a week off—but I didn’t miss much while I was away…right?

📅 Some Housekeeping—Immigration Insiders Meeting: If you haven’t already, register for our meeting on Oct 15 with Jonathan Micale, former Service Center Director at USCIS.

We’ll be simulating different scenarios for next year’s H-1B cap under the proposed ‘Weighted Selection’ rule—using this year’s registration data by prevailing wage level to show how selection odds could shift based on how companies pivot their strategies.

Then we’ll unpack the proposed rule ending Duration of Status for F-1 students and graduates—focusing on what adjudication trends will look like for the the wave of new cases firms will need to file to extend OPT and STEM OPT employees. Jonathan has a very informed set of insights here that you won’t hear anywhere else.

We’ll also cover DOL’s Project Firewall and the $100k H-1B fee—but as you’ll see below, I think that’s more smoke than fire.

👉 But before we get into it—one small ask: If you find the data and analysis shared in this newsletter valuable, please pass it along to your colleagues in the immigration space and invite them to subscribe.

1 big thing: the $100k H-1B fee is (primarily) a smokescreen

I left for vacation the day before the Sep 19 announcement dropped—but if you read the Sep 4 edition of this newsletter, you knew something like this was coming.

The initial rollout—which everyone agrees was clunky and unclear—came from President Trump and Commerce Secretary Lutnick in the Oval Office.

Since then, a State Dept. alert and USCIS memo have offered only partial clarity on the introduction of new fee.

Watch for a Friday afternoon news drop: More guidance is coming soon according to Emily Neumann from Reddy Neumann Brown—and I highly suspect it will come in the form of a late-Friday afternoon policy memo.

My expectation: USCIS will clarify that very few current H-1B holders owe this fee. FY 2026 cap selectees—who’s new status started yesterday—won’t be impacted. More up for debate, but I also don’t anticipate any FY 2026 cap selectees that still need to obtain their H-1B visa stamp at a consulate abroad and return to the U.S. will be impacted either.

Extensions, Changes of Employer, and Amendments will remain in the clear. The only immediate targets will be cap-exempt H-1Bs—but some will qualify for exemptions.

I anticipate the clarifications will center around USCIS explaining how the fee will apply to new H-1Bs selected in next year’s cap—where the fee wouldn’t be due until Oct 1, 2026.

That’s a year away—and that delay is the whole point of this smokescreen. 

The bottom line: the Trump administration would love the $100k H-1B to become a reality—but they know the court challenges ahead will make it uphill battle.

They’re also fine if it doesn’t go through—and that’s because this whole exercise is primarily a smokescreen.

It was designed to pull attention away from the other immediate changes that will reshape the H-1B program into something more aligned with what the administration wants.

It’s no coincidence that DOL’s Project Firewall and the text of the ‘Weighted Selection’ rule were released at the same time as this presidential proclamation.

All the media attention was—and still is—on the $100k fee. The attention and resources of the heavy hitting litigators, like the U.S. Chamber of Commerce, are on the $100k fee. Not Project Firewall. Not the Weighted Selection rule. Not the rule ending Duration of Status for F-1s and creating new barriers and costs in the OPT → H-1B pipeline.

Back in August—when we knew both rules were coming—most experts I spoke with felt strongly they would be litigated and likely stopped.

I was more bullish than most that both rules would go through—and I put the chances even higher now.

If that happens, then by March, law firms and global mobility teams will be filing extensions for hundreds of thousands of F-1 OPT and STEM OPT holders—and facing a completely new H-1B lottery with an entirely different game theory.

We’ll do a deep dive into the real-world impact of both rules in our Immigration Insiders session in a few weeks. Hope to see you there.

Final note: If this $100k fee is implemented, then there’s no sugarcoating it—it will shrink the entire employment-based immigration industry for the next three years.

Very few companies will pay this fee. The 85,000-per-year numerical H-1B cap will never come close to being reached.

The visa would become far more expensive, but for the few thousand individuals who get it, it would be a guaranteed visa and no longer a roll-of-the-dice in the lottery.

2. USCIS Director Edlow says the government shutdown will slow down case processing

Earlier this afternoon, Director Edlow posted on X that USCIS will be prioritizing cases with security and fraud concerns at the cost of routine processing for other cases.

He hasn’t provided any further details, but I anticipate (another) Friday afternoon press release or memo expanding on this post.

Steven Brown—also from Reddy Neumann Brown—quickly pointed out in response to Edlow’s tweet that USCIS is a fee-funded benefits adjudication agency, and a government shutdown should not be a pretext to reduce adjudication speed.

There’s no telling how long this shutdown will last. If there is a sudden dip in case processing, Lawfully will be the first to detect the scale of it.

I’ll report back in next week’s newsletter, but drop me an email if you notice delays happening with your cases. For example, if you see cases blow past premium processing deadlines.

3. Watch for a suspension of premium processing for I-140 applications

In our Immigration Insiders meeting on Oct 1, Michael Valverde and I looked at Lawfully’s data on the latest processing times for I-140 applications (non-premium processed).

Category-by-category, processing times are increasing—and in many cases, processing times have doubled between January and September.

Michael warned that premium processing for I-140s could be paused if non-premium I-140 processing times continue to climb.

It’s “something to watch as those processing times go up,” Michael noted in the session. “I would say the chance of a pause gets higher.”

Historically, USCIS has paused premium processing when backlogs grew too large to meet deadlines. Premium is a big revenue source, so the agency tries to keep it running, but rising RFE rates or last-minute adjudications could signal stress in the system.

Why it matters: With I-140 approval rates for EB-2 NIW and EB-1A dropping significantly—as reported exclusively by Lawfully—I’ve seen many practitioners reference the use of premium processing as a tactic to secure a positive decision before scrutiny gets even higher for these case types.

The loss of premium processing—even temporarily—for these case types will impact the filing strategy for many applicants, companies, and law firms. It’d be likely to change overall processing trends for each case type going forward as well.

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A teaser for next week’s edition: If you’re interested in the Department of Labor’s ‘Project Firewall’—me too. I’m digging into which types companies will most likely be impacted and how quickly. I’ll share more next week.

Also: I’m recording a podcast with my friend Sam Peak tomorrow. Sam is very well connected on Capitol Hill—and despite the government shutdown—he’s closely tracking legislation targeted at H-1B, L-1, and other employment-based visa reform. You can listen to it tomorrow afternoon or catch my recap in this newsletter next week.

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📩 That’s it for this week! I want to hear your feedback and questions, so drop me a note anytime at [email protected].

See you next week!