New Executive Order Also Directs Agencies to Weigh Employer Layoffs in H-1B Adjudications
Executive Summary
President Trump has extended the $100,000 H-1B proclamation fee through September 21, 2027, even though the underlying fee policy should remain blocked by ongoing federal litigation. Separately, the President signed a new Executive Order directing DHS, DOL, and DOS to weigh an employer’s layoff history and broader labor market data when adjudicating H-1B petitions, labor condition applications (LCAs), visa applications, and applications for admission. Together with a pending DHS rulemaking proposing an additional, non-proclamation fee of roughly $103,000 on cap-subject H-1B petitions, these developments point to a continued period of volatility and heightened enforcement risk for H-1B sponsors, even while the headline $100,000 fee itself stays enjoined.
What You Need to Know
- The $100,000 H-1B proclamation fee has been extended through September 21, 2027, but it likely remains subject to a federal court order blocking its collection. Employers should not currently expect USCIS to assess it.
- A separate DHS rulemaking would add a new, roughly $103,000 fee on cap-subject H-1B petitions. This fee is not yet final and would stack on top of the proclamation fee if that fee is ever reinstated.
- A new Executive Order requires federal agencies to factor employer layoffs and labor market conditions into H-1B adjudications, extending scrutiny well beyond the narrow group of employers currently subject to displacement attestation requirements.
- Implementing guidance from USCIS, DOL, and DOS has not yet been issued. Employers should expect increased Requests for Evidence, denials, and DOL enforcement activity as agencies begin applying these directives.
In Depth
The $100,000 Fee: Extended, but Still Enjoined
On September 19, 2025, the administration issued a proclamation imposing a $100,000 fee on certain H-1B petitions, generally those filed on behalf of individuals abroad who would require consular processing. The proclamation exempted petitions for changes of status, extensions of stay, and individuals already holding valid H-1B visas. That policy was set to expire on September 21, 2026.
Rather than allow the policy to lapse, the White House issued a new proclamation on September 18, 2026 extending the fee for an additional year, through September 21, 2027. The administration pointed to a reported 92 percent decline in H-1B registrations by large IT outsourcing firms as evidence the policy is achieving its intended effect, framing the extension as necessary to protect U.S. economic and national security interests.
The fee, however, has been in legal limbo for months. Plaintiffs sued in December 2025, and in June 2026 a federal district court in Massachusetts vacated the fee policy in its entirety, holding that the $100,000 charge functioned as an improperly imposed tax and that the proclamation violated the Administrative Procedure Act. A brief stay allowed USCIS to resume collecting the fee for a short period, but the First Circuit Court of Appeals declined to disturb the district court’s ruling in July 2026, leaving the fee blocked. That litigation, along with a related challenge brought by the U.S. Chamber of Commerce, remains before the appellate court.
Because the new proclamation extends the same policy that is currently vacated, USCIS should remain barred from collecting the $100,000 fee unless a court rules otherwise. Employers should not incorporate the fee into current H-1B filing budgets or timelines based on the extension alone. The administration continues to appeal the vacatur, so this status could change with limited notice.
A Second, Separate Fee Is Also Moving Through Rulemaking
Distinct from the proclamation fee, DHS has initiated a formal rulemaking proposing an additional fee of approximately $103,000 on cap-subject H-1B petitions. This would be a regulatory fee, separate from and potentially in addition to the proclamation fee if it is later reinstated. As a rulemaking rather than a proclamation, it is subject to standard notice-and-comment procedures and is not yet in effect. G&A is tracking this docket closely and will issue a dedicated alert once the comment period and anticipated timeline are confirmed.
New Executive Order Adds Layoffs and Labor Market Data to H-1B Adjudications
The President also signed a separate Executive Order directing DHS, DOL, and DOS to consider whether a sponsoring employer has conducted, or plans to conduct, layoffs when adjudicating H-1B LCAs, petitions, visa applications, and applications for admission. The order further directs the agencies to weigh broader federal economic and labor market data, and instructs DOL to review pay data, industry conditions, and employment specialization at sponsoring companies.
This represents a meaningful expansion beyond current law. Today, only “H-1B dependent” employers and those found to have committed willful program violations must attest that they have not displaced a similarly employed U.S. worker within 90 days before or after filing an H-1B petition. The new order signals an intent to extend layoff-related scrutiny to a much broader population of H-1B sponsors, though the agencies have not yet issued implementing guidance addressing key questions, including what qualifies as a covered layoff, what time period will apply, and how the “negatively affects similarly situated U.S. workers” standard will be assessed.
“The Executive Order raises more questions than it answers right now. Congress specifically limited non-displacement obligations to H-1B dependent employers when it enacted the ACWIA amendments in 1998, and this order appears to apply a similar standard much more broadly, without the benefit of a statute, rulemaking, or defined terms. When agencies have this much latitude to decide what counts as a layoff and how heavily it weighs against a petition, without clear standards, the predictable result is inconsistent adjudications, and inconsistency is usually where litigation follows,” said Vic Goel, Managing Partner of Goel & Anderson.
Employers should anticipate:
- Increased Requests for Evidence and denials tied to job duties, wage levels, and staffing history, particularly for employers with recent workforce reductions.
- Expanded DOL enforcement activity, including review of previously filed LCAs, consistent with DOL’s existing Project Firewall initiative, under which the agency may open investigations based on internally identified concerns rather than an outside complaint.
- Greater documentation demands to demonstrate that H-1B hiring does not displace or adversely affect the U.S. workforce, extending beyond the traditional H-1B-dependent employer framework.
What Employers Should Do Now
- Do not assume the $100,000 fee applies to current H-1B filings based on the extension alone, but be prepared to act quickly if the litigation posture changes.
- Review recent and planned workforce reductions against active and upcoming H-1B filings, particularly in job categories where layoffs have occurred.
- Strengthen documentation of job duties, prevailing wage determinations, and staffing rationale in anticipation of increased scrutiny under both the new Executive Order and DOL’s existing enforcement priorities.
- Monitor the DHS rulemaking docket on the proposed $103,000 fee and consider submitting comments during the notice-and-comment period.
- Watch for forthcoming agency guidance implementing the layoff-consideration Executive Order, which will determine how these provisions are applied in practice.
Goel & Anderson is closely monitoring the fee litigation, the DHS rulemaking, and forthcoming agency guidance, and will provide updates as they become available. For questions about how these developments may affect your organization’s H-1B program, please contact your G&A immigration attorney.
This alert is for informational purposes only and does not constitute legal advice.
