$100,000 Entry Restriction Extended and Employer Compliance Scrutiny Increased
On September 18, 2026, the White House issued two significant H-1B actions affecting U.S. employers:
- A Proclamation extending the existing $100,000 H-1B entry-related payment restriction and
- An Executive Order directing increased scrutiny of H-1B sponsorship, particularly where employers have conducted or anticipate layoffs.
These actions do not eliminate H-1B sponsorship, but they increase the importance of reviewing an employee’s location, the nature of the proposed filing, and the employer’s recent or anticipated workforce activity before proceeding.
1. $100,000 H-1B Entry Restriction Extended
The September 18 Proclamation extends for an additional 12 months the H-1B entry restrictions first imposed in September 2025. The restriction is now scheduled to remain in effect through September 21, 2027. Under the Proclamation, entry into the United States in H-1B status is restricted for certain workers whose petitions are not accompanied or supplemented by a $100,000 payment, subject to limited exceptions. The restriction particularly affects H-1B workers who are outside the United States and require admission to the United States to effectuate approval of the H-1B petition. This may include cases involving consular processing, notification at a port of entry, pre-flight inspection, or pre-clearance.
It is unclear how this fee will be applied following the First Circuit denial of the government’s motion to stay the district court order in State of California v. Mullin, which found the H-1B fee unlawful.
2. Increased Scrutiny of Layoffs and H-1B Sponsorship
A separate Executive Order issued the same day directs the Departments of Homeland Security, Labor, and State to coordinate more closely in the administration of the H-1B program. Most significantly for employers, the agencies are directed to consider whether an H-1B sponsoring employer:
- Directly or indirectly engaged in layoffs during the previous 12 months; or
- Plans future layoffs that negatively affect similarly situated U.S. workers.
The Departments of Homeland Security, Labor, and State will coordinate their review of H-1B Petitions, Labor Condition Applications, H-1B visa applications, and Admission to the United States in H-1B status with the Departments of Commerce, Education and the Small Business Administration to ensure compliance with key Immigration and Naturalization requirements. The Federal Agencies will also work together to determine if the sponsoring employer has recently conducted, or plans to conduct layoffs affecting similarly situated U.S. workers.
The Executive Order does not state that an employer that has conducted layoffs is automatically prohibited from filing H-1B petitions. Rather, employers should expect greater scrutiny where there may be overlap between positions held by H-1B workers and U.S. workers affected by a reduction in force.
3. Broader H-1B Compliance Review
The Executive Order also directs increased coordination among federal agencies and permits consideration of wage, employment, academic, industrial, and other economic information in administering the H-1B program.
The Order identifies several areas of H-1B compliance as enforcement concerns, including:
- Displacement of U.S. workers;
- Preferential treatment of foreign workers;
- Misrepresentation of job duties, requirements, or working conditions;
- Improper characterization of positions as specialty occupations;
- Actions intended to reduce applicable wage requirements; and
- Misrepresentation of a foreign national’s qualifications or educational credentials.
In addition, the Department of Labor’s Wage and Hour Division is directed to begin reviewing data related to previously submitted LCAs (Labor Condition Application) to determine whether further enforcement action may be warranted.
What Employers Should review:
- $100,000 payment requirement: Is the employee outside the United States, and will the filing require admission to the United States to effectuate H-1B approval?
- Recent or anticipated layoffs: Has the company conducted layoffs during the preceding 12 months, or are future reductions in force planned?
- Overlap with U.S. workers: Were, or could, similarly situated U.S. workers be affected by those workforce reductions?
- Business justification: Is there documentation supporting the continued need for the H-1B position where workforce reductions overlap with the sponsored role?
Key Takeaway
Employers that have had or anticipate a layoff may need to carefully consider whether to file an H-1B petition.
The $100,000 entry-related payment restriction has been extended through September 21, 2027, though it remains unclear as to whether and how this fee can/will be applied.
Federal agencies have simultaneously been directed to increase scrutiny of H-1B sponsorship where recent or anticipated layoffs may negatively affect similarly situated U.S. workers.
The Executive Order authorizes agencies to issue additional rules, policies, operational guidance, and other implementing measures.
MVA will continue to monitor further agency developments and will send updates as they are released. We will also continue to carefully review each H-1B case and flag for further discussion when warranted.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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