On September 18, the President signed an Executive Order on H-1B “program integrity,” along with a Proclamation extending the $100,000 H-1B entry payment for another year, through September 2027. (A federal court vacated the agencies’ implementation of the payment in June, and the First Circuit declined to stay that ruling.)

The payment will get the headlines. The Executive Order may matter more to employers.

→ Layoffs become a factor for every sponsor. State, Labor, and DHS must now take into account, at the LCA, petition, visa, and entry stages, whether the employer “directly or indirectly” conducted layoffs in the prior year, or plans future layoffs, that negatively affect similarly situated U.S. workers.

Unlike the non-displacement attestation, which covers only H-1B-dependent employers and willful violators within 90 days of filing, this reaches every sponsor and looks back a full year.

→ DOL looks backward. By October 18, the Wage and Hour Division must begin reviewing data on previously filed LCAs to decide whether to act under INA § 212(n)(2)(G), the provision that lets DOL open investigations without a complaint if the Secretary of Labor personally certifies reasonable cause.

→ More agencies at the table. Commerce, Education, and the SBA will supply wage, employment, and academic data for H-1B adjudications. The order’s findings cite foreign degrees from diploma mills. What the order leaves open: it doesn’t define “indirectly” or “similarly situated,” or say how much weight a layoff carries. And it’s not clear how a layoff factor fits into LCA certification, which the statute limits to a check for completeness and obvious inaccuracies. Expect implementing guidance, and uneven adjudications until it arrives.

What employers should do now:

1. Audit public access files and LCA compliance now. WHD’s review can begin any time before October

2. Map layoffs from the past 12 months, and any planned reductions, against open and pending H-1B
   roles. Document how those positions differ in duties, location, and required skills. Remember that
   WARN notices are public.

3. Track the $100,000 payment’s status. Collection is blocked while the government appeals, but the
   renewal and any new agency guidance could change that. If it returns, it generally reaches beneficiaries
   abroad who need a visa or entry.

4. Strengthen credential evaluation documentation for foreign degrees.

One more point: the layoff factor and the $100,000 payment apply to H-1B. For individuals with a genuine record of extraordinary ability or internationally recognized research, O-1 and EB-1 deserve a fresh look. They aren’t a workaround, but for the right candidate they can be a stronger fit.

***Disclaimer: This post is for general informational purposes and does not constitute legal advice. Every case is fact specific. Please contact our office to discuss how this decision may affect your individual situation.***