The 2026 Midterms and Immigration: What Changes, What Doesn’t, and What Comes Next

On November 3, 2026, voters gave Democrats control of both chambers of Congress, flipping eight Republican-held Senate seats and winning a clear House majority. As of November 12, Democrats hold 55 Senate seats to 44 for Republicans, with Alaska still too close to call. Several House races are still being counted.

Starting January 3, 2027, the White House and Congress will be led by different parties for the first time since January 2025. The new Congress cannot rewrite USCIS policy, and pending cases will not move faster next week. But a divided government restores a check on the executive branch, and that oversight could help push the system back toward timely, consistent decisions for EB-2 National Interest Waiver (NIW), EB-1A, and O-1 applicants.

Below, we explain what the election changes, what it does not, and what it means for you, whether you have a petition pending or are considering filing one.

What the Election Changes, and What Stays the Same

Congress writes immigration law, but the President can veto bills, and the executive branch decides how the law is applied day to day. Here is what the election changes, and what it does not:

Area	What changes	What does not change
Control of Congress	Democratic majorities in both chambers from January 3, 2027	The current Congress serves until then
USCIS and DHS policy	Congress is more likely to question and review agency decisions	Policy still comes from the executive branch
New immigration laws	Democrats set the committee and floor agenda	Bills still need the President’s signature, or a two-thirds vote in both chambers to override a veto
Processing times	Congress is more likely to press USCIS and DHS on staffing and accountability	No immediate change for pending petitions
Green card limits and backlogs	Congress can raise annual green card numbers and now has room to negotiate	Current limits and Visa Bulletin cutoff dates stay in place until a new law passes

Key Dates to Watch

• December 11, 2026: Government funding runs out unless Congress passes a spending bill. In past shutdowns, USCIS kept processing most petitions because it runs mainly on filing fees. Department of Labor programs such as PERM and prevailing wage requests have typically paused, which can delay employer-sponsored cases. EB-2 NIW, EB-1A, and O-1 petitions do not require PERM, so they are less exposed.
• January 3, 2027: The new Congress takes office.
• Early 2027: Expect committee hearings on DHS and USCIS operations, and negotiations over agency funding.

Why This Election Matters for Skilled Immigration

The midterms arrive as competition for international talent intensifies. Immigrants founded or co-founded 59% of U.S. privately held billion-dollar startups, according to a 2026 study. Meanwhile, Canada, the European Union, and China have all launched new programs to recruit researchers and technology graduates.

The student pipeline, a key source of future founders, is also narrowing. New international student enrollment at U.S. colleges fell 17% in fall 2025, and nearly a quarter of America’s billion-dollar startups have a founder who first came here to study.

Employers are raising the same concern. When AI developer Anthropic filed to go public in October 2026, it listed immigration policy among its risk factors, noting that its edge depends on recruiting world-class researchers and engineers.

Leaders in both parties say they want to attract top scientists, engineers, and entrepreneurs, though they disagree on how strictly to run existing programs. The administration says its policies protect American workers, public resources, and national security. Those are legitimate goals, and skilled immigration can support them: these professionals create jobs, fill critical roles, and build companies.

How the New Congress Can Shape Immigration

Congress cannot rewrite the USCIS Policy Manual or decide individual cases. Its real power lies in oversight. Congressional investigations tend to rise sharply under divided government and can shift executive policy even when no new law passes.

The new majorities have three main tools:

• Scrutiny of agency leadership. Committees can call DHS and USCIS leaders to explain processing times, staffing levels, and denial trends, and can issue subpoenas if officials do not appear.
• Confirmations. The Senate vets and confirms the people who run these agencies, which gives senators leverage if leadership changes.
• Funding conditions. Congress can attach staffing or reporting requirements to DHS funding. Because USCIS runs mostly on filing fees, this lever is weaker for USCIS than for other agencies.

My View as a Former USCIS Officer

I spent more than 12 years at USCIS adjudicating petitions and training officers. From my perspective, there are two causes of today’s long waits and tougher reviews: workforce cuts that leave fewer officers doing more work, and the agency’s shift from a benefits focus to a law-enforcement one. The result has been tougher Requests for Evidence (RFEs) and Notices of Intent to Deny, with less time to respond.

Congressional oversight will likely push back, with lawmakers asking: “Why aren’t you qualifying people for these benefits that they’re very well qualified for, and why are you taking so long to process these files?” That pressure could refocus officers on decision quality and output.

None of this is a reason to wait. Filing now locks in an earlier priority date and positions your petition to benefit as conditions improve. Until then, a strong, well-documented petition gives an officer fewer reasons to issue an RFE or deny.

Consular Processing

In August 2026, a federal court struck down the State Department’s pause on immigrant visas for nationals of 75 countries and said that it was not permissible under U.S. law, in a case our federal litigation team was involved in. Congressional questions could now add pressure for full compliance with the ruling.

What We Expect in 2027

We expect renewed oversight of USCIS early in 2027, pushing the agency toward faster, more consistent decisions and helping it work through its historic EB-2 NIW backlog.

We are especially optimistic about EB-2 NIW petitions in STEM fields, where USCIS guidance already recognizes advanced degrees and work in critical and emerging technologies. We see similar potential for EB-1A and O-1 cases. As always, no change in the political climate can guarantee the outcome of an individual case.

Whether your petition is pending or you’re considering filing, the election does not change how cases are judged or who qualifies. If you have an EB-2 NIW, EB-1A, or O-1 petition pending, keep your evidence current and respond fully and promptly to any Request for Evidence. If you’re considering a self-petition, EB-2 NIW and EB-1A both let you file without an employer, and both reward a clear plan for your work in the United States and a documented record of results or recognition in your field.

Should You Delay Your Plans Until Congress Acts?

For most people, no. A case filed today may be decided in 2027 or 2028, when the political picture may have shifted again. Political favorability and legal eligibility are separate questions, and waiting rarely strengthens your case.

In backlogged categories, waiting can also cost you your place in line. For EB-2 NIW and EB-1A petitions, your priority date is generally the date USCIS receives your I-140. The sooner you file, the sooner a green card number can become available to you.

The Bottom Line

Elections shape the environment a case is decided in, not what a strong case looks like. What matters most is careful preparation and well-documented evidence, and both are within your control. If you’re weighing your options, our attorneys can review where your case stands. Start with a free profile evaluation.

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