By Sang M. Shin

On November 3, 2026, voters gave Democrats control of both the House and the Senate, with the new majorities set to take their seats when Congress convenes in January 2027. For companies that sponsor foreign talent and rely on U.S. visas and green cards, the obvious question is whether this shift changes the rules. The short answer is: not right away. Below, we summarize what a Democratic-led Congress can and cannot do on immigration, where change is most likely to come from, and what employers should be doing now.

Divided Government, Executive Control

Even with new congressional majorities, the federal government will likely remain divided. The administration will continue to set enforcement priorities, issue regulations, screen visa applicants, and adjudicate petitions and applications through USCIS, the Department of State, and other agencies. Congress generally cannot direct the outcome of individual cases or overturn a final regulation by committee action alone.

Broad legislative change also faces steep hurdles. Most bills need 60 votes in the Senate to overcome a filibuster, and the President retains the veto, which would take two-thirds of each chamber to override. As a result, presidential proclamations and existing agency policies will not change simply because control of Congress has changed.

Where Congress May Make Its Mark

1. Oversight and Investigations

The most immediate change will be scrutiny. With subpoena and hearing power beginning in January, House and Senate committees are expected to focus on immigration enforcement practices, detention conditions, use of force, due process, and body-camera policies at ICE and CBP. The incoming chair of the House Oversight Committee has already identified immigration enforcement as one of his top priorities. Employers should expect agency practices, including worksite enforcement and benefits adjudication trends, to receive more public attention, and in some cases to be documented in ways that may support future litigation or policy change, if required.

2. Funding Fights, With Limits

Control of the purse is Congress’s traditional lever, but its reach here is limited. Through budget reconciliation in 2025 and 2026, Congress appropriated roughly $240 billion for immigration purposes, much of it available over multiple years. That means enforcement operations are largely funded regardless of the new majorities. Expect debates over clawing back unspent funds or attaching conditions to future DHS appropriations, rather than an abrupt reduction in enforcement activity.

3. Nominations

A Senate majority will give Democrats more leverage over confirmations for DHS, USCIS, and Department of Labor leadership positions, which can indirectly shape agency direction over the remaining two years of the administration.

4. Targeted, Bipartisan Legislation

Comprehensive immigration reform remains unlikely before 2029. However, divided government sometimes produces narrower legislation. Areas with a realistic chance of bipartisan movement include:

• Recapturing unused employment-based immigrant visas and revisiting per-country limits that drive long green card backlogs, particularly for Indian and Chinese nationals;
• Protecting dependent children from “aging out” while green card cases are pending;
• Measures addressing physician and healthcare worker shortages;
• Seasonal and agricultural worker programs, including supplemental H-2B visas;
• E-Verify reauthorization; and
• Pairing border security with expanded legal pathways, a framework some newly elected members, including Texas Senator-elect James Talarico, have publicly endorsed.

Equally important, a Democratic Congress is likely to block efforts to codify more restrictive measures, such as legislation giving the H-1B fee a statutory basis.

The States, and Texas in Particular

Some of the most tangible changes may occur at the state level. Several new governors were elected on platforms critical of current enforcement, and some may seek to limit state cooperation with ICE, including through 287(g) agreements. Other states may follow California’s model requiring employers to notify employees within 72 hours of receiving notice of an I-9 inspection, along with expanded notice, privacy, and anti-retaliation protections.

In Texas, employers should not expect quick changes. State law, including SB 8, which requires sheriffs who operate jails to enter 287(g) agreements by December 1, 2026, remains in force unless the Legislature amends it. And regardless of state policy, employers remain fully subject to federal I-9, E-Verify, and visa compliance obligations. Multistate employers should prepare for an increasingly uneven patchwork of state requirements.

What Has Not Changed

• Pending petitions, applications, and court cases continue under current law and policy;
• Visa Bulletin priority dates do not reset;
• Heightened vetting, consular delays, and travel restrictions remain in effect unless the executive branch changes them; and
• Form I-9, E-Verify, LCA, and public access file obligations continue to apply, and worksite enforcement remains active.

Key Actions for Employers

1. Plan under current law.

Do not delay filings or restructure immigration programs in anticipation of legislative relief. Continue to file extensions early and use premium processing where available.

2. Keep compliance audit-ready.

Conduct internal Form I-9 and E-Verify audits, confirm H-1B wage and public access file compliance, and maintain a worksite enforcement response protocol.

3. Map state obligations.

Track new notice and employee-protection requirements in each state where you operate, and coordinate with employment counsel.

4. Communicate with your workforce.

Foreign national employees will have questions. Clear messaging that the election does not change their status or pending cases can reduce anxiety and attrition and manage expectations.

5. Watch the calendar.

Key indicators to monitor include the organization of the 120th Congress and committee leadership in January 2027, FY2027 DHS appropriations, the H-1B cap season beginning in March 2027, litigation over the H-1B fee and other executive actions, and agency regulatory agendas.

Conclusion

The 2026 midterms shift the balance of power in Washington, but they do not rewrite immigration law or regulations. For the next two years, expect investigations, funding brinkmanship, and possibly narrow bipartisan deals, while the executive branch continues to drive day-to-day policy. Employers that maintain strong compliance programs and plan around existing requirements will be best positioned for whatever comes next.

For questions about how these developments may affect your organization or your foreign national workforce, contact Sang M. Shin or any member of Jackson Walker’s Business Immigration & Compliance practice.

The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice. For additional assistance please contact a member of the Business Immigration & Compliance practice. Election results and policy developments described reflect information reported as of November 5, 2026, and some races may remain subject to final certification.

Meet Sang

Sang M. Shin is a business immigration attorney with broad experience managing immigration matters for companies, individuals, investors, and institutions through the U.S. and internationally. Sang handles a wide range of nonimmigrant visas and petitions and provides advanced and strategic advice to clients on a variety of immigrant visas and labor certification (PERM). Sang also helps foreign companies with their U.S. market entry, growth, and expansion efforts as they enter the United States by serving as outside counsel to their various legal needs.