The Trump administration announced two additional significant actions affecting the H-1B program late last week, increasing scrutiny of employers that have conducted or are planning layoffs and extending the $100,000 payment requirement for certain H-1B petitions.
The developments could have significant implications for employers that sponsor H-1B workers, particularly organizations undergoing layoffs, restructuring or other workforce reductions.
Executive order increases scrutiny of employers conducting layoffs
A new executive order directs the U.S. Departments of State (DOS), Labor (DOL) and Homeland Security (DHS) to consider an employer’s recent or planned layoffs when reviewing certain H-1B matters.
Specifically, the executive order directs the agencies to consider whether an H-1B sponsoring employer directly or indirectly engaged in layoffs during the previous year, or is planning future layoffs, that negatively affect similarly situated U.S. workers. It also directs the DOL to review data associated with such employer’s previously submitted Labor Condition Applications (LCAs) within 30 days.
It is important to note that the executive order is a broad directive and is not a new set of immediately applicable H-1B adjudication standards; the practical impact on H-1B petitions will become clearer as the agencies translate the executive order into specific policies and procedures.
Many important implementation questions remain unanswered, including how the agencies will define and evaluate relevant layoffs, what information will be considered, how the agencies will coordinate the information, and whether additional documentation or procedural requirements will be implemented. However, employers that have recently reduced their workforce or anticipate doing so, particularly with positions related to the H-1B position, should expect greater scrutiny of their H-1B filings and related compliance obligations as federal agencies implement the directive.
Employers should also continue to follow existing H-1B and DOL requirements while being mindful that additional scrutiny and compliance considerations may emerge as implementation of the executive order progresses across the agencies. In the meantime, employers are also encouraged, especially when considering reductions in force, to review with experienced counsel their current practices in place, particularly related to LCA compliance, petition withdrawals and public-access files.
$100,000 H-1B payment requirement extended through September 2027
In a separate proclamation issued late Friday, the administration extended for another year the restrictions first imposed in September 2025 involving certain H-1B workers outside the United States.
The proclamation extended the restrictions requiring a $100,000 payment for certain new H-1B petitions until Sept. 21, 2027. The payment requirement applies to the petitions below filed on or after 12:01 a.m. on Sept. 21, 2025:
- Beneficiaries who were outside of the United States and did not have a valid H-1B visa;
- Those requesting consular notification, port of entry notification or pre-flight inspection for a beneficiary who is inside the United States; or
- Beneficiaries for whom USCIS determined that a requested change of status, amendment or extension of stay could not be granted and instead approved the petition for consular notification, port of entry notification or pre-flight inspection.
However, the payment requirement remains the subject of ongoing litigation and is not currently enforceable at this time. A federal district court previously vacated guidance implementing the requirement, and the government’s appeal remains pending. Practically, the extended proclamation preserves the administration’s position that the restriction should remain in effect while the legal challenges proceed, but the ultimate applicability and enforceability of the payment requirement remain unsettled.
While the legal challenges remain pending, the attorneys at Garfinkel Immigration are currently experiencing USCIS holding H-1B petitions that would otherwise be subject to the payment requirement rather than adjudicating those petitions. USCIS has not issued official guidance announcing that it is placing these petitions on hold, and it remains unclear how the agency will formally address affected cases in light of the ongoing litigation and the extended proclamation. Employers with such cases should therefore anticipate adjudication delays while this issue remains unsettled.
The attorneys at Garfinkel Immigration Law Firm will continue monitoring these developments and provide updates as additional information becomes available.
Other H-1B fee proposal
DHS also published a proposed rule in late August that would impose a new $103,265 fee on H-1B cap-subject petitions.
Importantly, the proposed $103,265 fee is separate from the $100,000 payment requirement discussed above and is not currently in effect.
The proposal is subject to a 30-day public comment period. DHS must review and respond to comments before issuing any final rule, which would then need to be published with an effective date. That proposal is also highly likely to face legal challenges if finalized.
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