On Friday, September 18, 2026, President Trump signed two (2) actions aimed directly at the H-1B nonimmigrant visa program:
- A proclamation extending the $100,000 H-1B payment requirement for another year; and
- An executive order directing federal agencies to consider an employer's layoffs when handling H-1B filings.
Both actions were released at the same time on Friday and are generally being reported together, but they work very differently. For most employers the second action deserves more attention than the first at this time.
The short version.
The $100,000 H-1B payment has been extended through September 21, 2027, but a federal court order currently blocks the government from enforcing it, and the extension does not undo that order. The layoff executive order is new, on its face reaches every stage of the H-1B process, and there is no guidance on how it will be implemented yet. Employers that use the H-1B program and have had any workforce reductions in the past year, or are planning future layoffs, should start organizing their records now.
The $100,000 H-1B payment proclamation extended.
The original proclamation (Proclamation 10973), signed September 19, 2025 by President Trump, restricted the entry into the U.S. of H-1B workers unless the petition was accompanied by a $100,000 payment, with a narrow national interest exception available at the discretion of the Secretary of Homeland Security. Clarifying guidance from U.S. Citizenship and Immigration Services (USCIS), issued on September 20, 2025 and expanded on October 20, 2025, explained that the $100,000 payment applied only to new H-1B petitions filed on or after September 21, 2025 for workers outside the United States who did not already hold a valid H-1B visa, along with petitions requesting consular or port-of-entry processing. It generally did not apply to changes of status or extensions for people already in the United States who were eligible for them.
The new proclamation continues the same restriction for another year, expiring September 21, 2027, unless extended again. It keeps the national interest exception, keeps the requirement that employers obtain and retain proof of payment before filing for a worker outside the United States, and directs the agencies to recommend whether to extend it again within 30 days after the next H-1B lottery.
Where the $100,000 payment stands in court as of the date of this article.
On June 8, 2026, the U.S. District Court for the District of Massachusetts vacated the agency guidance implementing the $100,000 payment in State of California v. Mullin. The government asked the U.S. Court of Appeals for the First Circuit to pause (stay) that ruling while it appeals, and on July 24, 2026, the First Circuit denied the government's request. USCIS has also acknowledged the court order on its website. The appeal is still pending with the First Circuit.
The new proclamation extends the payment requirement's timeline, but it does not set aside or invalidate the court order. Unless the ruling is paused or reversed, or the agencies take new implementing action that holds up, the payment remains unenforceable. That said, employers should not treat the $100,000 H-1B payment issue as settled. By issuing this recent proclamation, the government is clearly committed to this payment, the appeal is still in play, and the agencies could issue new guidance at any time. Employers planning to hire an H-1B worker from abroad should build that uncertainty into the timeline and budget.
Not to be confused with the proposed $103,265 fee.
The $100,000 payment is also separate from the $103,265 fee that the Department of Homeland Security (DHS) proposed in August, which I covered in a previous article. That proposal is a DHS rule, not a proclamation, and it would apply to H-1B cap-subject petitions, including advanced degree exemption cases, on top of the regular filing fees. It is still only a proposal and is not in effect. When DHS proposed it, the rule noted that the proclamation was set to expire before the new fee would take effect, unless the proclamation was extended. With Friday's extension, if the proposed $103,265 fee is finalized and the $100,000 payment is ever enforceable again, an employer could face having to pay both, if their prospective H-1B worker is not exempt from either.
The executive order: layoffs become an H-1B factor.
The executive order is distinct from the $100,000 H-1B payment. This order directs the Department of State (DOS), the Department of Labor (DOL), and DHS to take into account, in any labor condition application (LCA), petition, visa, and entry involving an H-1B worker, whether the sponsoring employer directly or indirectly engaged in layoffs within the previous year, or plans future layoffs, that negatively affect similarly situated U.S. workers.
First, the language of the executive order is not limited to H-1B cap-subject petitions, new hires, or workers coming from abroad. It's broad. By its terms it covers any petition, which would include extensions, amendments, and changes of employer (transfers). It reaches the LCA stage at DOL, the petition stage at USCIS, visa issuance at the consulates (DOS), and admission at the border (DHS). Second, it reaches every H-1B employer. Current law already imposes non-displacement obligations tied to layoffs, but only on H-1B dependent employers and willful violators. This order is not limited that way. Third, it covers planned future layoffs, not just past ones.
Based on the language of the order and where things currently stand, it does not create an automatic bar, a new attestation, or a new form. It says layoffs are to be considered, not that a layoff disqualifies an employer. How much weight a layoff gets, and in what circumstances, will depend on how the agencies implement this order.
The other pieces of the order.
The order directs the Secretary of State, Secretary of Labor, and Secretary of Homeland Security to coordinate with the Secretary of Commerce, the Secretary of Education, and the Administrator of the Small Business Administration, which are to provide wage, employment, academic, industrial, and other economic data for use in H-1B processing. It also directs DOL's Wage and Hour Division, within 30 days of the order, to begin reviewing data on previously filed LCAs to decide whether further action against sponsoring employers is warranted. It's not clear what that means or how it will be conducted.
What we don't know yet.
The order leaves the key terms undefined. It does not say who counts as a "similarly situated" U.S. worker, whether the layoff has to involve the same occupation, worksite, or legal entity, what makes a layoff "indirect," or how an employer is supposed to show that a possible future reduction in force will not affect U.S. workers. It's also not clear whether the agencies named in the order will implement changes through the formal rulemaking process, or through policy guidance, requests for evidence or information, and case-by-case adjudication. Challenges are likely once implementation begins. Until the agencies issue further guidance, there will likely be inconsistency among them.
What employers should do now.
If your organization has had layoffs, reductions in force, or restructurings in the past 12 months, it may be best to pull together a list of which positions, which locations, which business units, when, and why. Then look at how those reductions line up against your H-1B roles. If the impacted positions are clearly different in occupation, skill set, or location from the H-1B positions you sponsor, it may be best to document that difference now. Further, be thoughtful about planned reductions too. Because the order reaches future layoffs, workforce planning and immigration planning should be talking to each other before decisions are finalized, not after.
Finally, for anyone you plan to bring in from abroad on an H-1B visa, it may be beneficial to talk through timing and implications with competent counsel. The $100,000 H-1B payment is blocked today, but that could change.
If your organization sponsors H-1B workers and has had or is planning workforce reductions, feel free to reach out to discuss your situation.