Business Immigration After the Midterms (Part 1): What to Expect No Matter What

This post begins a three-part series on US immigration after the midterm election. In any case, immigration compliance is not just about paperwork. Employers now know that job descriptions, wage levels, sponsorship questions, PERM recruitment, public access files, I-9s and business travel records can all be tested against what the company actually does in practice. The key question is how credible and defensible those records are in the immigration process.

Against that backdrop, the 2026 US midterm elections are unlikely to produce major immigration legislation. Neither party appears likely to hold 60 votes in the Senate, and without 60 votes, Congress cannot easily move broad immigration legislation over a filibuster. Even a strong Republican election night would not create a clear path for a sweeping business immigration bill.

Even without major immigration legislation, US immigration policy will continue to evolve. The next phase of immigration policy will likely move through enforcement, oversight, appropriations, state law, litigation, procurement, travel screening, private complaints and changes to the application of agency discretion. Agencies will use laws and regulations already on the books. States will build their own models. Congress will investigate even when it cannot legislate. Workers and applicants will file complaints. Advocacy groups will sue. Companies will have to explain decisions that once looked routine.

The central, post-midterm question is who will scrutinize employer workforce decisions and how aggressively. Employers should expect several developments under every plausible election outcome. The federal government will continue to frame business immigration enforcement as US-worker protection. States will matter more, including states that take a harder line through contracts, incentives, licensing, reporting rules, law enforcement cooperation and public pressure. Private complaints will matter more, both from US workers who believe companies favored foreign workers, and from work-authorized noncitizens who believe companies went too far in limiting sponsorship or screening for long-term work authorization. AI will add pressure by increasing worker anxiety and giving the government better tools to identify patterns across employer records.

US-worker protection will remain the main enforcement frame

The administration’s immigration agenda fits inside a broader US-worker protection framework. While different agencies may ask a variety of legal questions, the central point remains: whether the company gave US workers a fair chance.

The Department of Labor (DOL) may test that through an H-1B investigation, the Department of Justice (DOJ) through a PERM recruitment or citizenship-status discrimination case, and the Equal Employment Opportunity Commission (EEOC) through a hiring or promotion case. Congress turns to letters or hearings, while state attorneys general turn to a procurement, consumer-protection or worker-protection lens, and a private plaintiff via class action.

Project Firewall shows how the federal government can use existing H-1B rules more aggressively, with a focus on wage compliance, job classification, public access files, notice, documentation and potential adverse effects on US workers. PERM enforcement follows the same path, examining whether an employer recruited US workers in good faith before sponsoring a foreign national for permanent residence. A poorly run recruitment process can become more than a paperwork problem; it can trigger discrimination claims, labor certification risk, reputational exposure and broader scrutiny.

The worker-protection frame also reaches beyond immigration. Enforcement tied to DEI, hiring, promotion and workplace policies signals that federal agencies will scrutinize employer systems that appear to disadvantage legally protected groups. Employers should expect agencies to look at immigration, civil rights, labor and recruitment practices as connected parts of one workforce system.

Hiring and sponsorship questions will require more care

In the heightened enforcement environment, employers should avoid creating new legal risk while trying to manage immigration exposure. Limiting sponsorship, avoiding candidates who may need future support or pausing foreign national hiring after layoffs may seem practical, but can raise discrimination concerns if companies screen out work‑authorized individuals based on citizenship, status, nationality or perceived future cost.

Employers need to know whether a candidate is authorized to work and whether they will require sponsorship now or in the future. Those questions support legitimate workforce planning. Clean questions generally look like:

• “Are you legally authorized to work in the United States?”
• “Will you now or in the future require employer sponsorship to work in the United States?”

Risk grows when employers probe further into a candidate’s current or future status, citizenship, nationality, or assumed long-term immigration prospects. Questions such as “Do you have an H-1B already?”, “Will you need a green card?”, or “Are you going to need immigration help later?” may move quickly from sponsorship planning into status-based screening, depending on timing, context, and how the information is used.

Some status-specific questions may arise in legitimate immigration planning after an offer or during onboarding. Some may also fit narrow contexts where the employer needs specific information to assess sponsorship feasibility. But in ordinary recruiting, the employer should stay focused on work authorization and sponsorship need. The closer a question gets to a person’s current or future status, citizenship, nationality, or perceived permanence, the more carefully the employer needs to manage timing, purpose, documentation, and consistency.

Consistency matters, but it does not solve the whole problem. A company can consistently ask the same improper or overly intrusive question and create risk. Risk also increases when recruiters or hiring managers translate immigration complexity into shortcuts. Statements such as “We are not considering OPT candidates for this role,” “Let’s focus on people who will not need anything from us for the next few years,” or “We are only hiring people with permanent work authorization” may reflect a desire to control cost, reduce uncertainty or manage compliance, but they can also screen out individuals who are legally work-authorized and protected from certain forms of discrimination.

Employers face pressure from the other side as well. A rejected US worker may allege that the company preferred foreign workers because sponsored workers appeared to offer a business advantage. A company does not need to say anything obviously discriminatory to face that claim, but a pattern can emerge: layoffs followed by H-1B filings, repeated rejection of US applicants during PERM recruitment, unusual job requirements, weak recruitment records, or internal messages suggesting that sponsored workers provide a retention or workforce-planning benefit.

Job descriptions, USCIS filings, and wages will carry more enforcement weight

Employers should treat the revised Form I-129 as more than an adjudication form. The new form pushes more information about the job into the sworn petition record. Employers will need to disclose more about the job requirements that support the wage level, including education, experience, special skills and supervisory duties. That information can later be compared against the LCA, payroll data, public access files, job architecture, recruiting materials, worksite practice and DOL investigation records.

US Citizenship and Immigration Services (USCIS) and DOL approach the same job from different angles. USCIS asks whether the petition supports the requested classification. DOL asks whether the employer complied with the LCA, paid the required wage, selected the proper wage level, gave required notice, maintained required records and avoided adverse effects on US workers. The revised Form I-129 effectively creates a shared record between USCIS and DOL. The employer’s description of duties, skills, supervision and experience can later be tested against the wage level, payroll, job posting, public access file and the employee’s actual role.

A short example shows the risk. An employer files an H-1B petition for a “Software Engineer II.” The petition describes a role requiring advanced technical judgment, several years of experience, and responsibility for mentoring junior engineers. The company uses a wage level that assumes a less complex role. The public job posting says the company will consider candidates with limited experience. The manager later tells a USCIS officer during a site visit that the employee mostly maintains existing code. No single fact proves noncompliance. But taken together—the wage level, the job classification, the petition, and the company’s internal controls—these facts create avenues for scrutiny.

Proposed prevailing wage increases would raise the stakes. Higher wage levels would increase the cost of many H-1B and PERM cases. They would also make wage-level selection more consequential because a weak or inconsistent wage-level analysis could produce larger back-wage exposure, require compensation changes, or make some roles harder to sponsor. Employers would need to explain why a job fits a particular wage level, how that analysis lines up with the company’s job architecture and whether the petition, LCA, posting, payroll and manager understanding all tell the same story.

Travel friction will continue, with narrow exceptions for major events

Travel will remain more difficult than it was before. The government may lower burdens for specific national priorities, high-profile events or diplomatic needs. The World Cup provides a good example. The federal government has created event-specific visa processing support for certain World Cup travelers, including priority appointment scheduling for eligible ticket holders and limited visa-bond relief tied to ticketing rules.

Those measures do not signal a broader easing of travel policy. They show that the government can create narrow relief when a major event requires it.

Employers should not treat World Cup relief as a business-travel strategy. Routine business travel will continue to face appointment delays, administrative processing, social media vetting, border questioning, device-search concerns, nationality-based restrictions, stricter review of B-1 activity and more scrutiny of whether a traveler’s planned activities match the visa category.

Business visitors require special attention. Companies often treat B-1 and ESTA travel as low risk because those trips do not involve formal work authorization. Border officers may take a different view if the traveler appears to provide productive labor, train workers, install equipment, manage operations or fill staffing gaps. Reshoring, advanced manufacturing, battery projects, semiconductor projects and major technology deployments all create pressure to move people quickly, and that pressure can create business-travel risk.

Need to Know More?

For questions about government enforcement, please contact Partner K. Edward Raleigh at [email protected]. 

This blog was published on May 28, 2026 and may be subject to change. Stay up to date on the latest immigration updates by subscribing to our alerts and follow us on  LinkedIn, Facebook and Instagram.