SCOTUS Begins 2026–2027 Term. This week, the Supreme Court of the United States kicked off its 2026–2027 term. The Court will continue to fill its docket in the coming weeks, but it already has several cases that should be of interest to employers (though these cases are perhaps a bit more esoteric than those of the last term, which dealt with matters concerning presidential removal powers and birthright citizenship, among others).
For example, the justices will review a case concerning pleading standards when challenging imprudent investments under the Employee Retirement Income Security Act of 1974. Another case to be heard by the Court addresses whether the United States Constitution prohibits the U.S. Department of Labor’s (DOL) administrative law judges from imposing monetary penalties on employers for H-2A violations following the Court’s 2024 decision involving the U.S. Securities and Exchange Commission.
The justices will also examine whether employees of federally funded educational institutions can pursue employment discrimination claims under Title IX of the Education Amendments of 1972—which allows for quicker access to courts and does not have statutory caps on damages—as opposed to Title VII of the Civil Rights Act of 1964. Finally, the Court will decide whether an employer can raise an affirmative defense for the first time at summary judgment that it has not previously raised without amending its answer.
DHS Proposes OPT Fee Rule. On October 10, 2026, the U.S. Department of Homeland Security (DHS) issued a notice of proposed rulemaking (NPRM or “proposal”) on “Optional Practical Training Fees.” Key elements of the proposal are as follows:
- Initial fee. The NPRM proposes that schools be charged a fee of $70,000 per F-1 nonimmigrant student the first time that they recommend an F-1 nonimmigrant student for any type of optional practical training (OPT).
- Additional fee. The NPRM also proposes a requirement that these schools then pay a $30,000 fee for each additional time they recommend the student for OPT. For example, a school would be required to pay a total of $100,000 for a student who engages in OPT prior to completing his or her program ($70,000), followed by post-graduation OPT ($30,000).
- Who pays? Schools would be required to pay the fee, but “DHS acknowledges that the schools may pass the financial obligation of this proposed fee onto F-1 nonimmigrant students, all students, or employers.”
- Effective date. The rule would apply prospectively to F-1 nonimmigrant students who apply for OPT after the effective date of the final rule, which would be sixty days after its publication in the Federal Register.
- Foreshadowing? DHS warns stakeholders that “absent these fees, it will not be able to operate OPT consistent with its focus on preventing fraud and protecting American workers and may shut down the program entirely.” (Emphasis added.)
DHS maintains that the proposal is necessary “to ensure that schools, students, and employers participate in OPT for its intended purpose instead of [as] a means to circumvent the H-1B visa program.” Because the fee is designed to have a deterrent effect, it will be deposited in the U.S. Treasury and not earmarked for any DHS processing or operational costs. Comments must be received on or before November 9, 2026.
Andrew G. Drozdowski, Amanda R. Goodman, and Tiffany Lam-Bentley have additional details.
Unions, Immigration Groups File Challenge to Policies on Adjustment of Status and Benefits Denials. A coalition of labor unions and immigrants’ rights groups has filed a legal challenge in the U.S. District Court for the District of Massachusetts against two recent DHS policies regarding adjustment of status applications and denials of benefit requests. The lawsuit alleges that these policies exceed DHS’s statutory authority and violate the Administrative Procedure Act because they are arbitrary and capricious (as DHS arguably failed to articulate a reasoned explanation for the policy changes and did not consider reliance interests) and because the policies were issued without providing the public notice or an opportunity to comment on the changes. The complaint also alleges that the policies violate the due process clause of the Fifth Amendment because they fail to provide an adequate or fair procedure for adjudicating adjustment-of-status applications. The lawsuit asks the court to preliminarily enjoin the policies during the challenge and vacate them.
FLSA Independent Contractor Reg. Moves Forward. The DOL’s Wage and Hour Division (WHD) sent the Office of Information and Regulatory Affairs (OIRA) a final version of its rule relating to independent contractor status under the Fair Labor Standards Act, the Family and Medical Leave Act, and the Migrant and Seasonal Agricultural Worker Protection Act. After OIRA completes its review of the draft rule—which can take several weeks—WHD will publish the final rule. If the rule is finalized as proposed, the DOL would adopt an “economic realities” test for evaluating independent contractor status that focuses on two core factors: the nature and degree of control over the work and the worker’s opportunity for profit or loss.
‘No Taxation Without Representation.’ The Stamp Act Congress began this week in 1765 in New York City. Attended by twenty-seven merchants, lawyers, and landowners from the thirteen colonies—many of whom would go on to sign the Declaration of Independence and attend the 1787 Constitutional Convention—the Congress sought to develop a unified strategy in response to Britain’s recent passage of the Stamp Act of 1765. Directed specifically at the American colonies, the Stamp Act was designed to raise revenue to cover the costs of stationing British troops in the colonies. As a result, colonists were taxed on nearly every paper they used, including newspapers, books, court documents, commercial papers, deeds, and even playing cards and dice. After eighteen days, the Congress produced the Declaration of Rights and Grievances, which contained fourteen statements. Two of these statements would feature prominently in the subsequent fight for independence and the drafting of the United States Constitution: no taxation without representation and the right to trial by jury.
