What the November 3 Midterms Can and Can't Change for H-1B, OPT and Employment Green Cards

Election night changes no visa rule. Here is what really controls H-1B, OPT and green cards this winter, and why every pending bill dies on January 3, 2027.

Status as of November 1, 2026. The midterm elections are on Tuesday, November 3, 2026, and the result will not change any H-1B, OPT or employment green-card rule on its own. Every pending H-1B, OPT and student-visa bill we track in the 119th Congress, including the End H-1B Visa Abuse Act and the bills to end OPT, was introduced and referred to committee: none has passed the House or the Senate, and any bill not enacted dies at noon on January 3, 2027. Your near-term questions are decided by agency rules and court orders. The OPT fee, the end of the 60-day grace period for H-1B and other workers, and the end of extension deference are all proposed, with comments closing November 9, 10 and 13. The Duration of Status (D/S) rule is blocked by a federal court, and the $100,000 H-1B fee is not being collected because courts blocked the agency policies that implement it.

The people elected on Tuesday take office on January 3, 2027. Until then the outgoing Congress returns on November 9 for a five-week lame-duck session, and "the top priority will be funding the federal government beyond December 11, 2026," according to Ogletree's October 30 Beltway Buzz.

Will the midterm elections change H-1B and OPT rules?

Not directly. A midterm election changes who sits in Congress from January 3, 2027; it does not rewrite any regulation, court order or USCIS form. As of November 1, 2026, no pending H-1B or OPT bill has passed either chamber, and the rules people worry about most are DHS proposals or policies a federal court has blocked.

Three forces control your status, and the election reaches only one of them, starting in January:

• Agencies (DHS, USCIS, ICE's Student and Exchange Visitor Program, DOL, State) write and enforce rules. A proposal binds no one until a final rule is published and takes effect, and that clock does not depend on November 3.
• Courts decide whether those rules can be enforced. The D/S rule, the $100,000 fee policies and SEVP's CPT guidance all have court filings or hearings due between November 2 and November 9.
• Congress writes statutes and funds the government. Only Congress can create or abolish a visa category, and it is the branch the election reshapes.

In early October 2026, Vice President JD Vance said "the H-1B program is completely broken" and that he would be "very supportive of just eliminating it," as reported by KATV on October 2. No bill, rule or order followed.

What actually decides each question this winter

Who decides what, as of 2026-11 (status checked 2026-11-01)

USCIS states on its Form I-539 page and Form I-129 page how it is applying the D/S and $100,000-fee court orders. Those two pages are the quickest check that nothing has flipped.

Which H-1B and OPT bills are pending right now?

As of November 1, 2026, these bills are pending in the 119th Congress. None has passed the House or the Senate, and each dies at noon on January 3, 2027 unless enacted.

Every pending H-1B, OPT and related bill, as of 2026-11 (checked 2026-11-01 on govinfo.gov and congress.gov)

S. 2821, the American Tech Workforce Act (2025-09-16), is also referred only. Rep. Riley Moore's April 20, 2026 letter urging DHS to end OPT is a letter, not a bill.

What the table tells you:

• "Introduced and referred" is step one. Nothing more happens unless the committee acts, both chambers pass the same text and the President signs. We found no Judiciary Committee hearing or markup on H-1B or OPT in October 2026.
• Cosponsors are not votes. H.R. 2315 has 40 cosponsors and is still in committee.
• The bills point in opposite directions. H.R. 8013 would write OPT into statute; H.R. 2315 and S. 4834 would end or defund it.

Our explainer on how H-1B reform bills move through Congress covers the process, and our breakdown of what Rep. Crane's End H-1B Visa Abuse Act would do covers the most-cited bill. On the tax bill: unless a law passes, OPT wages of F-1 students who are nonresident aliens for tax purposes stay exempt from Social Security and Medicare taxes under the IRS rules for foreign students.

What happens to pending immigration bills when Congress ends?

They die. The 20th Amendment ends "the terms of Senators and Representatives at noon on the 3d day of January" (text at Cornell LII), so the 119th Congress ends at noon on Sunday, January 3, 2027. Any bill not enacted by then expires. A sponsor can file the same idea in the 120th Congress, but it gets a new number and must clear committee, both chambers and the President again. A 2027 article that calls H.R. 8443 "pending" is describing a dead bill.

The lame duck is short, and as of November 1 we found no announced deal on a stopgap or a full-year funding bill. The current continuing resolution (H.R. 6500, P.L. 119-103) runs through December 11 and, according to the Congressional Research Service, also extends Conrad 30, E-Verify, the non-minister religious-worker program and supplemental H-2B for its duration, so those lapse with it unless Congress passes funding by 2026-12-11. Fee-funded USCIS kept processing during this year's 76-day DHS-only lapse (2026-02-14 to 04-30), and SEVP was unaffected. This CR also covers DOL, so, judging by past shutdowns as CRS and practitioners describe them, DOL's foreign labor certification office (LCA, PERM, prevailing wage) could stop in a lapse. See what a December 11 funding lapse would mean for USCIS, DOL and E-Verify.

Can Congress end OPT after the midterms?

Only by passing a law. As of November 1, 2026, no OPT bill has moved past committee referral, and each dies on January 3, 2027 unless enacted. OPT itself lives in DHS regulations at 8 CFR 214.2(f), not in a statute, which is why H.R. 8013 would write it into law, and why the faster route to changing OPT runs through DHS rulemaking.

That rulemaking is under way. The OPT fee proposed rule (91 FR 64566, docket ICEB-2026-0100), published October 8, would have the SEVP-certified school pay $70,000 before the initial OPT recommendation and $30,000 before each later one, with STEM OPT counting as a later one. Schools could pass the cost to students, all students or employers. The fee would start 60 days after a final rule and would not reach students already on approved OPT, or whose DSO recommendation is dated before the effective date. Comments close at 11:59 p.m. ET on November 9 (regulations.gov shows the UTC time, which reads November 10), with more than 4,700 filed as of November 1. After November 9 the comment period is closed and the rule is still only a proposal.

ICE also lists a broader "Practical Training" rule with a proposal target of February 2027; no text exists, and a target is not a commitment (reginfo.gov, RIN 1653-AA97). The rules you live under today are unchanged: 90 days of allowed unemployment on post-completion OPT and 150 in aggregate with STEM OPT (SEVP BCM 2101-01), and the 180-day automatic extension for timely STEM OPT filers on the USCIS STEM OPT page. Our guide to what DHS actually proposed for OPT in October goes rule by rule.

Common misconception: "OPT now costs $70,000," or "students pay a $100,000 OPT fee."

Correction (as of 2026-11-01): nothing is in effect. Under the proposal the school is the legal payer and may pass the cost on, and $100,000 is the proposal's own worked total for initial OPT plus STEM OPT, not a separate fee. SEVP's BCM 2610-02 calls the $30,000 a "second year" fee, but the Federal Register text, $30,000 for each later recommendation, controls.

Does a new Congress cancel the proposed OPT fee?

No. The OPT fee is a DHS proposed rule, not a bill, so it does not expire on January 3, 2027 and does not depend on who wins seats. After November 9, DHS can publish a final rule, revise the proposal or leave it pending, without waiting on Congress. The same is true of the worker grace-period proposal (comments close November 10), the deference proposal (November 13) and the $103,265 cap-subject H-1B fee proposal, whose comments closed September 24 with no final rule at OIRA. Our guide to the three November comment deadlines explains how to file a comment.

Congress, outgoing or newly elected, could stop a final rule only by passing a law, such as a Congressional Review Act (CRA) resolution, which needs both chambers and the President's signature or a two-thirds veto override. Courts can also review a final rule, as they are doing with D/S.

This is where the election could touch agency rules. The Senate fast-track for a CRA resolution lasts 60 session days from a rule's submission, and rules submitted in the last 60 session days before Congress adjourns (legislative days in the House) get a fresh window in the next session (5 U.S.C. 801(d) and 802). Which 2026 rules qualify depends on when this Congress adjourns. Our reading: if DHS submits a final rule late in this session, the window could restart in the Congress elected on November 3. That is a procedure, not a forecast; no final OPT-fee rule exists or is at OIRA.

What the D/S fight shows about Congress versus the courts

S.J.Res. 213 is the one CRA resolution waiting for a Senate floor vote: the Judiciary Committee was discharged on September 17, and there has been no vote since. If it is not enacted by January 3, it dies. The courts did the work instead. The D/S rule has been blocked by a federal court since 2026-09-14 (Presidents' Alliance, D. Mass. 1:26-cv-13799); summary judgment is briefed, and DHS's appeal is pending. USCIS says DHS "is preliminarily enjoined from taking any further action to implement the final rule" and "USCIS will proceed under the previous regulatory provisions," so D/S and the 60-day F-1 grace period still apply. Replies are due November 2 and a ruling can come any time after (check the docket for the outcome after 2026-11-02); DHS's First Circuit brief (No. 26-2112) is due November 9. Read more on whether Congress can overturn the D/S rule through the CRA.

What about H-1B workers and employment green cards?

For H-1B, the near-term questions sit in courtrooms and the Federal Register, not on the ballot.

• The $100,000 fee. Proclamation 11069 runs until 2027-09-21 on paper, but courts blocked the agency policies that implement it, and the fee is not being collected as of November 1, 2026. The I-129 page says: "If this order is later lifted, DHS still plans to collect the payment."
• The grace period. The proposal would remove the 60-day period in 8 CFR 214.1(l)(2) for workers; about 27,000 comments; it closes November 10 at 11:59 p.m. ET. The current 60 days applies, and no 30-day or 180-day H-1B grace period exists or is proposed.
• Deference. The proposal would delete 8 CFR 214.1(c)(5) for all I-129 extensions; DHS's own estimate is about 6,044 extra RFEs a year; about 400 comments; it closes November 13.
• The lottery. Wage-weighted selection has been in effect since 2026-02-27. FY2028 registration is not announced, and USCIS must give at least 30 days' notice.

For employment green cards, the annual limits and per-country caps are written into the Immigration and Nationality Act, so only a new law changes them, and none of the bills in the table above has passed a chamber. What moves your case month to month is the Visa Bulletin. The November 2026 bulletin (released October 22) left EB-2 India's Final Action Date at 2013-11-01 and moved EB-3 India to 2014-01-22, and USCIS requires the Dates for Filing chart for November I-485s (USCIS filing charts); consular cases always use Final Action Dates. The December bulletin was not out as of November 1, so any December cutoff is a forecast. DOL's PERM labor-market-test proposal (RIN 1205-AC29) cleared OIRA on October 23 but is unpublished; current PERM rules apply. DOL's October 8 PERM suspension of eight named employers is a PERM action with no written notice or end date, not an H-1B suspension.

A worked timeline: one OPT candidate, November 2026 to March 2027

Say you finished a master's in May 2026, you are on post-completion OPT, you plan to file for STEM OPT in spring 2027, and your employer intends to register you for the FY2028 H-1B lottery:

• Tuesday, 2026-11-03 (election). Nothing changes. Your EAD, unemployment count and STEM OPT eligibility are what they were on Monday.
• Monday, 2026-11-09. OPT-fee comments close. Under the proposal STEM OPT counts as a later recommendation, and the fee would reach only DSO recommendations dated on or after the effective date, 60 days after a final rule. Your spring 2027 STEM OPT recommendation would be covered only if a final rule took effect before your DSO signs it; as of November 1 no final rule exists or is at OIRA. Our reading: the proposal does not settle whether someone whose first OPT was fee-free would owe $70,000 or $30,000 on a later request, so treat that as unresolved and ask your DSO if a final rule is published.
• Tuesday, 2026-11-10. Worker grace-period comments close. This matters once you hold H-1B status; today the 60 days applies.
• Friday, 2026-12-11. Funding deadline. E-Verify runs with the CR, and STEM OPT employers must be enrolled in E-Verify; during the 2025 shutdown it went offline on 2025-10-01 and returned around October 8-9.
• Sunday, 2027-01-03, noon. The 119th Congress ends, and every OPT and H-1B bill in the table dies unless enacted.
• February 2027. ICE's target for a broader "Practical Training" proposal (agenda target only).
• March 2027 (expected, not announced). FY2028 H-1B registration.

Only December 11 and January 3 belong to Congress, and both are deadlines for the outgoing Congress, not the new one. Neither changes your EAD; the dates that could change the rules are agency and court dates.

How to track what actually changes after November 3

1. Check the Federal Register page for each proposal (OPT fee, docket ICEB-2026-0100; worker grace period, RIN 1615-AD22; deference, RIN 1615-AD26) for a final rule with an effective date.
2. Read the USCIS page for your form, Form I-539 for D/S or Form I-129 for the $100,000 fee, to see how USCIS is applying court orders.
3. Look up any bill by number on congress.gov and read its latest action; anything short of enactment (the President's signature or a veto override) changes nothing.
4. Open the CourtListener dockets for the D/S case after November 2 and for the CPT case after the November 6 hearing.
5. Scan reginfo.gov's list of rules under OIRA review for unpublished drafts such as RIN 1615-AD00, which have no public text or comment period.
6. Ask your DSO about OPT, STEM OPT, CPT or your SEVIS record; a licensed immigration attorney about petition timing or status strategy; and a tax professional who handles nonresident returns about FICA.

Common mistakes

• Reading election results as rule changes. New members take office on 2027-01-03, and the vote itself changes no rule on November 4.
• Treating "introduced" as "passed." Every bill in the table was introduced and referred; none has passed a chamber.
• Mixing up the two 60-day grace periods. The F-1 grace period is intact because D/S is blocked. The proposal to end the 60-day grace period covers H-1B, H-1B1, L-1, O-1, TN, E-1/E-2/E-3 and dependents, not F-1.
• Saying "the $100,000 fee is back" or "gone for good." Courts blocked the agency policies; the proclamation stands on paper to 2027-09-21; the fee is not being collected.
• Planning around a shutdown prediction. The only fact is the date: funding runs out on December 11 unless Congress acts.

Frequently asked questions

Will the midterm elections change H-1B rules?

Not by themselves. The people elected on November 3, 2026 take office on January 3, 2027, and no H-1B bill has passed the House or the Senate as of November 1, 2026. The near-term questions, such as the $100,000 fee (not collected while court orders stand) and the proposed end of the 60-day grace period for H-1B and other workers, are being decided by courts and DHS rulemaking.

Can Congress end OPT after the midterms?

Only by passing a law, and no OPT bill has moved past committee referral as of November 1, 2026. Bills such as H.R. 2315, S. 4834 and H.R. 8443 / S. 5097 die at noon on January 3, 2027 unless enacted. OPT exists in DHS regulations, so the faster route to change is agency rulemaking, such as the proposed OPT fee.

What happens to pending immigration bills when Congress ends?

They die. The 119th Congress ends at noon on January 3, 2027 under the 20th Amendment, and any bill not enacted by then expires. A sponsor can reintroduce it in the 120th Congress, but it gets a new number and must clear committee, both chambers and the President again.

Which H-1B and OPT bills are pending right now?

As of November 1, 2026, they include the End H-1B Visa Abuse Act (H.R. 8443 / S. 5097), H.R. 2315 and S. 4834 on ending or defunding OPT, the OPT Fair Tax Act, H.R. 8013 to write OPT into statute, S. 5638 / H.R. 10799 on the H-1B-dependent salary line, and the SMARTER Act. Every one was introduced and referred to committee, none has passed a chamber, and all die on January 3, 2027 unless enacted.

Does a new Congress cancel the proposed OPT fee?

No. The OPT fee is a DHS proposed rule (91 FR 64566), not a bill, so it does not expire with the 119th Congress. Comments close at 11:59 p.m. ET on November 9, 2026, and the fee could start only 60 days after a final rule. Congress could block a final rule only by passing a law, such as a Congressional Review Act resolution.

Sources

• Federal Register: OPT fees proposed rule (2026-10-08); 60-day grace period proposed rule (2026-09-11); deference proposed rule (2026-10-14)
• USCIS: Form I-539, Form I-129, STEM OPT, Visa Bulletin filing charts
• ICE SEVP: BCM 2101-01
• Congressional Research Service: R49353, overview of the FY2027 continuing resolution
• govinfo.gov: H.R. 8443 status, S.J.Res. 213 status, H.R. 6500
• CourtListener: D/S docket, CPT docket
• reginfo.gov: RIN 1653-AA97, rules under OIRA review
• Constitution: 20th Amendment; 5 U.S.C. 802; IRS: foreign student FICA
• Reporting: Ogletree Beltway Buzz, October 30, 2026; KATV on Vice President Vance, October 2, 2026

How we checked this: we read bill status on govinfo.gov and congress.gov, rule text and comment dates on federalregister.gov, the USCIS, ICE, reginfo.gov and CRS pages above and the court dockets on CourtListener on November 1, 2026. After the results, we will update this page only with what changes in control, never with predictions.

This is general information, not legal or tax advice. Your own I-20, I-94, EAD or approval notice, and your DSO or immigration attorney, govern your situation.

The election will not decide your next job, but a search built around the rules that do can keep you moving. If you want a team that watches these dates while it focuses your applications on employers that sponsor, talk to F1Jobs.