New H-1B Executive Actions Increase Scrutiny of Employers and Extend $100,000 Payment Requirement
New H-1B Executive Actions Increase Scrutiny of Employers and Extend $100,000 Payment Requirement
On September 18, 2026, the Trump Administration issued two significant presidential actions affecting the H-1B program: a new Executive Order directing federal agencies to consider certain employer layoffs when reviewing H-1B matters, and a separate Proclamation extending the existing $100,000 payment requirement for certain H-1B workers outside the United States.
Together, the actions may have significant implications for employers sponsoring H-1B workers, particularly employers that have recently implemented or are considering workforce reductions.
New Scrutiny of Employer Layoffs
The new Executive Order directs the Departments of Labor (DOL), Homeland Security (DHS), and State (DOS) to consider whether an H-1B sponsoring employer:
- directly or indirectly engaged in layoffs during the preceding year; or
- plans future layoffs that negatively affect the employment of similarly situated U.S. workers.
This consideration may occur in connection with Labor Condition Applications (LCAs), H-1B petitions, visa applications, and the admission of H-1B workers to the United States. The Order also calls for increased information sharing among federal agencies regarding wage, employment, academic, industry and other economic information.
The Order does not establish a blanket prohibition against H-1B sponsorship by an employer that has conducted layoffs. However, it expressly makes recent and planned layoffs affecting similarly situated U.S. workers a factor agencies are directed to consider in H-1B matters.
Additional agency rules, policies and operational guidance are expected to provide further information about how these provisions will be implemented.
DOL Directed to Review Previously Filed LCAs
The Executive Order also reaches beyond future H-1B filings.
Within 30 days, DOL’s Wage and Hour Division is directed to begin reviewing data related to previously submitted LCAs to determine whether further action against sponsoring employers may be warranted under existing H-1B enforcement provisions.
Employers that have recently implemented reductions in force while maintaining an H-1B workforce should therefore expect increased scrutiny and should coordinate immigration planning with broader workforce planning.
$100,000 H-1B Payment Requirement Extended Through September 2027
In a separate Proclamation issued September 18, 2026, the Administration extended for another 12 months the H-1B entry restrictions and associated $100,000 payment requirement originally imposed in September 2025.
The Proclamation extends the restrictions through 12:00 a.m. EDT on September 21, 2027.
Under the restrictions established by the original September 2025 Proclamation, entry of certain H-1B workers is restricted unless the applicable petition is accompanied or supplemented by the $100,000 payment, subject to limited exceptions.
Employers planning H-1B sponsorship involving workers outside the United States should therefore identify potentially affected cases early and determine whether the payment requirement or an available exception applies.
Importantly, this $100,000 payment requirement is separate from the recently proposed DHS fee of approximately $103,000 for certain cap-subject H-1B petitions. The latter remains a regulatory proposal and is not the same fee being extended by the September 18 Proclamation.
Practical Impact for Employers and Employees
The immediate impact of this extension is not clear. Several months ago, a federal judge declared the $100K fee to be unlawful, and that ruling is now under appeal.
In terms of the lay off order, employers should be prepared for greater coordination among DOL, DHS and DOS and potentially greater scrutiny where an organization has conducted layoffs while continuing to sponsor H-1B workers. Employers contemplating workforce reductions should consider the potential immigration consequences as part of their planning, particularly where U.S. and H-1B employees hold similar positions.
The Executive Order expressly authorizes the responsible agencies to issue additional rules, policies and operational guidance to implement its requirements. Further guidance will therefore be important in determining how the new provisions will be applied in practice.
Legal challenges may also affect implementation of these measures.
Maggio Kattar will continue to monitor agency guidance and litigation affecting these H-1B requirements and provide updates as developments occur.