On September 18, 2026, the Trump administration doubled down on its campaign to restrict the H-1B visa program, issuing two sweeping directives that could reshape how employers sponsor foreign workers for years to come.
President Trump signed a proclamation extending the $100,000 payment requirement for certain H-1B nonimmigrant petitions by another 12 months, through September 21, 2027.
Simultaneously,
he issued an executive order directing the Departments of Labor, Homeland Security, and State to coordinate more closely on H-1B program administration and take into consideration employers' recent or planned layoffs.
But here is the critical nuance for employers and visa holders:
the fee remains blocked by the courts, so it still can't be enforced.
The $100,000 Fee: Alive on Paper, Dead in Practice
The fee was originally signed September 19, 2025, and took effect September 21, 2025, targeting certain new H-1B specialty occupation workers hired from outside the United States.
It does not apply to F-1 students changing status inside the U.S., to extensions or renewals for current H-1B holders, or to change-of-employer petitions for beneficiaries already in the country.
The policy met its legal reckoning earlier this year.
U.S. District Judge Leo T. Sorokin vacated the policy June 8, ruling it functioned as a tax the executive branch had no authority to impose without Congress.
The case, State of California v. Noem, was
led by California Attorney General Rob Bonta and Massachusetts Attorney General Andrea Joy Campbell at the head of a coalition of 20 state attorneys general.
The court found that the fee constituted an unauthorized tax that exceeded executive authority, infringed upon Congress's taxing power, and violated the Administrative Procedure Act.
While the district court briefly stayed its own order,
the First Circuit ultimately denied the government's motion to stay. As a result, the district court's ruling remains in effect, and the $100,000 H-1B fee cannot currently be enforced while the case continues through the courts.
Despite this legal setback, the White House is pressing forward.
The administration stated that "the restrictions enacted by the 2025 proclamation have proven to be highly effective but the underlying conditions necessitating the restrictions persist."
The proclamation cited a 92 percent decrease in H-1B registrations by the largest IT staffing and outsourcing firms, from 24,946 to 2,055.
The original proclamation carried a one-year term and would otherwise have lapsed September 21, 2026. Extending it keeps the framework in place, so the fee could take effect quickly if an appeals court rules for the administration.
New Executive Order: Layoffs Under the Microscope
Perhaps more immediately consequential is the companion executive order,
titled "Enhancing Program Integrity and Interagency Coordination in the Administration of the H-1B Nonimmigrant Visa Program."
Under the new order, the government must consider whether an H-1B employer had layoffs within the past year or is planning future layoffs that negatively affect similarly situated U.S. workers. This review can come up at several points in the H-1B process, including when an employer files a Labor Condition Application, an H-1B petition, when an employee applies for an H-1B visa, and when an H-1B employee seeks admission to the United States.
Importantly,
the directive is broader than the existing statutory nondisplacement rules because it reaches layoffs during the prior year and planned future layoffs, rather than focusing only on the existing ninety-day window.
It also may apply to all H-1B employers, not only H-1B-dependent employers and willful violators.
The order does not create an automatic bar following layoffs, but employers should expect additional scrutiny where workforce reductions involved professional, technical, or specialty occupation roles.
Under the order, the Department of Labor will also begin, within 30 days, reviewing data from previously submitted labor condition applications to determine whether additional action against sponsoring employers may be warranted under federal law.
Consulting, staffing, outsourcing, and other third-party placement models may face particular scrutiny because those arrangements can raise displacement questions at client worksites.
The Broader Regulatory Landscape
These September 18 actions are just the latest in a rapidly escalating regulatory assault on the H-1B program.
On August 25, 2026, the Department of Homeland Security published a Notice of Proposed Rulemaking that would impose a new $103,265 fee on H-1B cap-subject petitions, including those filed under the advanced degree exemption.
Unlike the presidential proclamation, this proposed fee would go through formal rulemaking—
and would apply to all 85,000 initial cap-subject petitions, not only those H-1Bs first entering the country. The presidential proclamation payment only applied to entries, sparing those seeking changes of status from within the United States, most commonly international students. The proposed fee does not spare them.
The U.S. Chamber of Commerce has filed a separate suit now before the D.C. Circuit, and twenty state attorneys general brought the case that produced the vacatur in federal district court in Massachusetts.
What This Means for Employers and H-1B Workers
For employers and foreign nationals navigating this volatile landscape, the practical takeaways are clear but carry significant caveats:
The $100,000 fee is not currently collectible.
The new extension keeps the fee policy alive on paper, but it does not appear to override the court's ruling. As a result, employers are not currently required to pay the $100,000 fee when filing H-1B petitions.
However,
based on the language in the new proclamation, USCIS may argue that the new proclamation is not impacted by the July 2026 federal court decision.
Layoff scrutiny is coming.
The executive order is an enforcement and policy directive—not an immediate regulatory overhaul. Still, it signals a clear intent to intensify scrutiny of H-1B employers and prioritize U.S. worker protections. Employers that sponsor foreign national employees, particularly in technology, consulting, staffing, and outsourcing, should anticipate more compliance reviews and rigorous adjudications in the months ahead.
Implementation details remain uncertain.
The executive order leaves significant implementation details to forthcoming agency guidance, which will determine how DOL, DHS, and the State Department incorporate layoff-related information into H-1B adjudications. Information on how the directive will apply in practice is not yet known.
For employers seeking to bring covered H-1B workers into the country, the immediate result is another year of uncertainty surrounding a policy the White House intends to maintain but whose ultimate legality remains before the federal appellate courts.
Employers currently sponsoring or planning to sponsor H-1B workers should consult experienced immigration counsel to assess their exposure under both the extended proclamation and the new layoff-scrutiny framework, particularly if they have undergone any workforce reductions within the past 12 months.
Clinch Law Firm continues to monitor these developments and will provide updates as the courts and federal agencies act on these directives.