H-1B News: $100,000 Fee Extended for Another Year, and a New Executive Order Targets Employers With Layoffs

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H-1B News: $100,000 Fee Extended for Another Year, and a New Executive Order Targets Employers With Layoffs

September 21, 2026

On September 18, 2026, President Trump took two actions affecting the H-1B program.

The first is a proclamation extending the $100,000 H-1B payment requirement for another 12 months, through September 21, 2027. As with last year’s version of this fee, the payment applies to new H-1B petitions for workers outside the United States who need a visa, or who must be admitted into the United States to start work. Extensions or changes of status filed for workers already in the U.S. are not subject to the $100,000 fee. For a full breakdown of who does and doesn’t have to pay, see our earlier post on USCIS’s guidance.

This fee has been successfully challenged in court, though the government is appealing a federal judge’s ruling that it constituted an unlawful tax. Separately, DHS has proposed a new $103,265 fee on cap-subject H-1B petitions, which isn’t yet final (and which is also expected to be challenged in court).

The second action is a new executive order that changes how the government reviews H-1B employers. While we expect additional guidance from the government regarding implementation, the order makes clear that employer layoffs will now be a factor at every stage of the H-1B process, and that data from throughout the government will be used to evaluate H-1B petitions. This represents a significant change for H-1B employers.

Employer layoffs will be considered throughout the H-1B process

The order directs the Department of Labor, USCIS, and the State Department to consider whether an employer has laid off U.S. workers in similar jobs in the past year, or plans to. This applies at every stage:

when DOL certifies the Labor Condition Application,
when USCIS decides the H-1B petition,
when a consulate issues the visa, and
when the worker arrives at the border.

Employers that rely heavily on H-1B workers were already barred from laying off U.S. workers shortly before or after an H-1B filing, so this concept isn’t entirely new. However, the order goes further, because it applies to every H-1B employer, it reaches back a full year, it looks ahead to planned cuts, and it covers layoffs made “directly or indirectly.”

The order doesn’t say how much weight a layoff will carry, what counts as a “similarly situated” worker, or how employers will be asked about layoffs. Those details will be forthcoming eventually, possibly to include updates to relevant USCIS forms. Until then, employers that have had layoffs in the past year should expect closer review.

The Department of Labor will proactively review past filings

While the DOL already has the power to initiate investigations against H-1B employers, historically the DOL has initiated employer investigations after receiving a complaint. However, the new order directs the DOL’s Wage and Hour Division to begin proactively reviewing previously filed Labor Condition Applications within the next 30 days, and to decide whether any employers deserve further action. Employers with H-1B workers on staff should expect that their past filings, and whether they actually kept the promises made in them, may be examined.

Interagency cooperation

Until now, H-1B cases were handled mainly by DOL, USCIS, and the State Department. The order adds three more agencies:

The Department of Commerce will provide wage and industry data, which can be used to test whether offered wages are realistic and to identify layoffs.
The Department of Education will help verify foreign degrees and schools. The order specifically raises concerns about “diploma mill” credentials and inflated job requirements.
The Small Business Administration will provide information that can help confirm an employer is a real, operating business.

The order also points to the anti-discrimination rules enforced by the Department of Justice. Those rules prohibit employers from favoring visa workers over qualified U.S. workers. This suggests that the government may begin to investigate certain H-1B hiring practices as discrimination against U.S. workers, similar to prior DOJ lawsuits against Apple and Facebook (which centered on the PERM Labor Certification program, rather than on the H-1B program).

Looking ahead

Whether through formal guidance, updated forms, or the issuance of RFEs, we will eventually get additional clarity on how this order will practically impact the processing of H-1B petitions. Until then, employers who file H-1B petitions and have had layoffs in the past year (or who expect layoffs in the future) should consult with an immigration attorney. In addition, employers should continue to carefully hew to relevant regulations, e.g., those requiring the posting of notice and the maintenance of public access files.

TAGS: $100k fee, H-1B, Layoffs