Compliance Round Up – DHS Expands the H-1B and L-1 Biometric Fee, Massachusetts Sets a 48-Hour ICE Notice Clock, Illinois Adds a Layoff Filing, and the Fourth Circuit Limits Indefinite Leave

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Written By
Jennifer Kiesewetter
Published On: August 24, 2026

Jenny Kiesewetter is a practicing ERISA and employee benefits attorney who partners with HR teams on a wide range of workplace compliance matters — from benefit-plan obligations to day-to-day HR policies and regulatory requirements. Her guidance helps employers spot risks early, navigate regulatory change, and make informed decisions that support both employees and the organization.

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DHS extended a $4,000 fee to routine H-1B extensions, and $4,500 to L-1s. Massachusetts and Illinois each added new employer reporting duties. A Fourth Circuit decision sharpened what the Americans with Disabilities Act demands when an employee asks for reassignment.

Here are four developments for your fall planning.

Federal News

Status: Published August 10, 2026; effective September 9, 2026.

What’s Changing

A U.S. Department of Homeland Security (DHS) final rule reverses the agency’s own reading of the 9-11 Response and Biometric Entry-Exit Fee statute. The fee runs $4,000 for H-1B and $4,500 for L-1 petitions, and now attaches to every extension of status petition a covered employer files, including same-employer extensions that escape the $500 fraud prevention and detection fee. Amended petitions that do not request an extension stay exempt.

Covered employers are those with 50 or more U.S. employees where more than half hold H-1B, L-1A, or L-1B status, counted in the aggregate across all three categories and including part-time workers. From fiscal year 2018 through fiscal year 2025, 27 percent of H-1B petitions from covered employers carried the fee. Under this interpretation, 75 percent would have. DHS could not run the same calculation for L-1 petitions. The fee itself expires for petitions filed after September 30, 2027 unless Congress extends it.

What This Means for HR:

  • Rebuild your immigration budget through September 30, 2027 at $4,000 per H-1B extension and $4,500 per L-1, and revisit if Congress extends the fee.
  • File any extension petition that’s ready before September 9, where eligibility supports it, since DHS confirms the fee does not reach pending or already filed petitions.
  • Confirm with counsel whether you qualify as a covered employer, since the ratio counts part-time workers and combines all three visa categories.

Trending State News

Effective date: Approved and effective August 5, 2026.

What’s changing

Massachusetts enacted the PROTECT Act, Chapter 163 of the Acts of 2026, formally An Act Promoting Rule of Law, Oversight, Trust and Equal Constitutional Treatment. The legislature attached an emergency preamble, so the duty took effect on approval with no phase-in.

Section 8 adds a paragraph to Section 19C of Chapter 149 of the General Laws. Except as federal law requires otherwise, an employer receiving a U.S. Immigration and Customs Enforcement (ICE) notice of inspection for Form I-9 or other employment records must give every employee written notice of the request within 48 hours. The duty covers all employees, not just those whose records ICE requested, and the statute sets no size threshold, no required form, and no delivery method. Nor does it say what federal law would override the notice.

The clock creates a squeeze. Federal rules give employers at least 3 business days to produce I-9s, so the state notice usually comes due first. The new paragraph also sits inside Section 19C, which carries a $200 to $500 fine for violating any provision of the section, though no one has tested whether that penalty reaches the notice requirement.

What this means for HR

  • Build both clocks into one ICE response protocol, since the 48-hour employee notice comes due before the federal production deadline.
  • Draft the notice template now and clear it with counsel, because 48 hours leaves no drafting time.
  • Name a recipient and backup for ICE notices, and train front-desk staff to escalate same-day.

Effective Date: Signed August 21, 2026; effective January 1, 2027.

What’s Changing

Governor JB Pritzker signed Senate Bill 807, now Public Act 104-0839. A new subsection of Section 700 of the Illinois Unemployment Insurance Act requires an employer with 75 or more employees in Illinois, counted at any point during the preceding calendar year, to report a layoff or separation of 50 or more employees at a single site to the Illinois Department of Employment Security (IDES).

The employer sends each separated employee’s name, Social Security number, separation start date, and return-to-work date where one applies, through the secure channel IDES prescribes, as soon as practicable before the separations begin. Willful noncompliance can draw a civil penalty of up to $750 for each day of violation after the separations start, as the Department determines.

The 50-employee count excludes part-time employees as defined by the Illinois Worker Adjustment and Retraining Notification (WARN) Act, and the duty does not reach construction-industry employees covered by a bona fide collective bargaining agreement. Because the requirement lives in the Unemployment Insurance Act rather than the Illinois WARN Act, a reduction in force from January forward needs two separate analyses. The same bill delays scheduled Illinois Unemployment Insurance Act benefit and contribution changes to January 1, 2029.

What This Means for HR:

  • Add an IDES step to your Illinois reduction in force playbook before January 1, 2027, and assign an owner.
  • Build a secure transmission process now, since the filing carries Social Security numbers for every separated worker.
  • Run both threshold tests separately, since a layoff can trigger the IDES filing without triggering Illinois WARN and the reverse.

Around the Courts

Decided: August 5, 2026.

What’s Changing

In Dieng v. Orkin, LLC, U.S. Court of Appeals for the Fourth Circuit, No. 25-1221, pest control technician Ibrahima Dieng was hurt on the job and asked repeatedly for light-duty reassignment. Orkin gave him no substantive answer and left him on unpaid leave for 16 months until he resigned. The court vacated summary judgment for Orkin on the failure to accommodate claim under the Americans with Disabilities Act (ADA) and sent it back for trial, finding three problems.

  • The wrong job was analyzed. Where an employee seeks reassignment, the essential functions analysis looks to the position he wants, not the one he can no longer perform.
  • The leave was not effective. Indefinite unpaid leave can work when a disability is temporary and the employee is expected back in the same role, but not where restrictions are permanent and the employer fills vacancies the employee could have held.
  • The interactive process may not have occurred. No one at Orkin discussed his limitations with him, contacted his physicians, or answered his counsel.

A concurring judge called reassignment a disfavored accommodation that employers are generally under no obligation to offer. The majority didn’t stop there. Where an employee can no longer hold the current position, the ADA requires the employer to determine whether it can reassign him without undue burden.

Orkin did keep one win. The court affirmed summary judgment on the termination claim, because Dieng’s administrative charge alleged only failure to accommodate and never reached the discharge.

What this means for HR

  • Run the essential functions analysis against the open position the employee requests, not the current job description.
  • Treat extended unpaid leave as a temporary bridge with a defined end date, never a permanent parking spot.
  • Document the interactive process itself, and record which vacancies you considered and ruled out.

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