Trump EO Directs H-1B Scrutiny of Employer Layoff History

What Happened

On September 18, 2026, President Trump signed an [executive order](https://www.whitehouse.gov/presidential-actions/2026/09/enhancing-program-integrity-and-integrity-and-interagency-coordination-in-the-administration-of-the-h-1b-nonimmigrant-visa-program/) titled *Enhancing Program Integrity and Interagency Coordination in the Administration of the H-1B Nonimmigrant Visa Program*. Section 3(a) directs the Secretaries of State, Labor, and Homeland Security to take into account, "in any labor condition application, petition, visa, and entry" of H-1B nonimmigrants, whether the sponsoring employer "directly or indirectly engaged in layoffs within the previous year or plans future layoffs that negatively affect the employment of similarly situated United States workers."

The order's stated rationale is that the H-1B program has been used to displace rather than supplement U.S. workers. It asserts that technology-sector employers collectively requested H-1B visas for hundreds of thousands of workers while laying off between 800,000 and 1.3 million American employees between 2022 and 2026.

Section 2 of the order adds an interagency data layer: State, Labor, and DHS must coordinate and consult with the Secretaries of Commerce and Education and the Administrator of the Small Business Administration, who "shall provide any relevant wage, employment, academic, industrial, or other economic information" for H-1B adjudications. Section 3(c) delegates the President's INA section 215(a) authority to those agencies to issue implementing rules, policies, and operational guidance.

The same day, the President signed a separate [proclamation](https://www.whitehouse.gov/presidential-actions/2026/09/restriction-on-entry-of-certain-nonimmigrant-workers-faad/) extending Proclamation 10973 — the September 2025 policy requiring a $100,000 payment for certain H-1B petitions — for 12 months, until September 21, 2027. A White House [fact sheet](https://www.whitehouse.gov/fact-sheets/2026/09/fact-sheet-president-donald-j-trump-further-enhances-program-integrity-and-interagency-coordination-in-the-h-1b-visa-program/) describes both actions as measures to protect American workers from H-1B program abuse.

Who's Affected

The order reaches every stage of the H-1B process, so the practical audience is broad:

• Employers with recent or planned layoffs: Any company that conducted layoffs in the previous year — or has announced future workforce reductions — now has that history as a formal factor in LCA certification, petition adjudication, visa issuance, and admission decisions.
• H-1B-dependent employers and staffing firms: The order singles out third-party placement and outsourcing arrangements for scrutiny, and these employers already face the narrowest displacement attestations under current law.
• H-1B beneficiaries filing new petitions or applying for visas abroad: Consular officers and CBP are directed to consider the sponsor's layoff record when reviewing visa applications and applications for admission.
• Employers with previously filed LCAs: DOL's Wage and Hour Division must begin reviewing existing LCA data within 30 days, which could trigger investigations of past filings.

What Attorneys Should Know

The order is directionally significant but operationally incomplete. Several points frame the advice:

• No automatic prohibition: The order instructs agencies to "take into account" layoff activity; it does not create a per se bar on H-1B sponsorship by employers that conducted layoffs. How adjudicators weigh the factor depends on implementing guidance that has not yet been issued.
• Existing law is narrower: Current displacement attestations — that an employer has not laid off a U.S. worker and replaced them with an H-1B worker in an essentially equivalent job within the 90-day window around a filing — apply only to H-1B-dependent employers and willful violators. The order directs agencies to look at layoffs far more broadly than that, as [Fragomen notes](https://www.fragomen.com/insights/united-states-new-executive-order-directs-federal-agencies-to-consider-layoff-activity-and-labor-market-data-in-h-1b-adjudications.html).
• DOL LCA review and Project Firewall: Section 3(b) requires the Wage and Hour Division to begin reviewing previously submitted LCA data within 30 days to determine whether action against sponsoring employers is warranted under INA section 212(n)(2)(G). Fragomen observes this could initiate investigations under DOL's Project Firewall, which permits agency-initiated investigations based on credible information even without a complaint.
• The $100,000 fee extension is currently unenforceable: The companion proclamation extends the fee policy, but the underlying fee was vacated in its entirety on June 8, 2026 by the U.S. District Court for the District of Massachusetts in *State of California et al. v. Mullin*, No. 1:25-cv-13829, and the First Circuit declined to stay that ruling in July 2026. Per [Fragomen's analysis](https://www.fragomen.com/insights/united-states-president-trump-extends-dollar100000-h-1b-fee-but-policy-currently-vacated-by-court-order.html), the extension should also be blocked, meaning USCIS remains barred from collecting the fee. USCIS continues to appeal, so the status quo could change with little notice.
• Separate rule still pending: DHS's proposed rule to impose a $103,265 fee on cap-subject H-1B petitions (comments due September 24, 2026) is a distinct proceeding and would stack on the proclamation fee if the latter is ever reinstated.

What Applicants Should Do

For H-1B beneficiaries and their employers, the order changes the risk profile of filings sponsored by companies with recent layoffs:

• Gather your employer's layoff context before filing. If your sponsor had layoffs in the past year, be prepared for questions about the roles affected and how your position differs. Attorneys should align job duties, requirements, and wage documentation with the offered position from the outset.
• Do not budget for the $100,000 fee. Despite the extension proclamation, the fee is vacated by court order and USCIS should not be collecting it. If any agency requests the payment, flag it to counsel immediately — it contradicts the current court order.
• Visa applicants and travelers: consular officers and CBP are directed to consider sponsor layoff records. Carry standard H-1B documentation plus evidence of the position's legitimacy and the employer's ongoing operations.
• Plan for slower, harder adjudications. Even absent formal guidance, examiners now have an explicit mandate to weigh labor-market data, so expect closer scrutiny of offered wages, job duties, and requirements.