The H-1B visa 2026 landscape now includes expanded layoff scrutiny, increased interagency data-sharing, and a renewed $100,000 payment requirement for certain H-1B cases.
On September 18, 2026, the President signed the Executive Order titled “Enhancing Program Integrity and Interagency Coordination in the Administration of the H-1B Nonimmigrant Visa Program.”
The President also issued a separate Proclamation renewing the H-1B entry restriction and $100,000 fee requirement first imposed on September 19, 2025.
These actions do not eliminate the H-1B program. They increase the compliance risks associated with layoffs, third-party placement arrangements, wage documentation, and employment-based filings. Employers and foreign workers must account for these developments when planning a work visa for foreign employees.
What the September 18, 2026 Executive Order Requires
The Executive Order directs the Secretaries of State, Labor, and Homeland Security to consider an H-1B sponsoring employer’s layoff activity when evaluating several stages of the process.
The agencies must consider whether the employer directly or indirectly:
- Engaged in layoffs during the preceding year;
- Plans future layoffs; or
- Conducted or plans layoffs that negatively affect similarly situated U.S. workers.
This consideration may apply when agencies review:
- Labor Condition Applications (LCAs);
- H-1B petitions;
- H-1B visa applications; and
- Applications for admission at a port of entry.
The Executive Order does not establish an automatic prohibition on H-1B sponsorship after a reduction in force. It does, however, make recent and planned layoffs a factor that agencies must consider. A company that has reduced its workforce may therefore face additional questions about the relationship between the layoffs and the sponsored position.
The phrase “directly or indirectly” is significant. Agency review may extend beyond a straightforward employer-employee termination. Restructuring, affiliated entities, contractors, staffing companies, and other business arrangements may receive increased attention when they affect comparable U.S. workers.
Interagency Data-Sharing Will Increase
The Executive Order directs the Departments of Labor, Homeland Security, and State to consult with:
- The Department of Commerce;
- The Department of Education; and
- The Small Business Administration.
The agencies are expected to use additional information concerning wages, employment, academic qualifications, industrial conditions, and specialized occupations.
This data may help agencies compare:
- The employer’s wage practices;
- The offered position and occupational classification;
- The qualifications required for the position;
- The employer’s workforce reductions;
- Labor-market conditions; and
- The relationship between the sponsored position and available U.S. workers.
The Executive Order also directs the Department of Labor’s Wage and Hour Division to begin reviewing data from previously submitted LCAs within 30 days. The purpose is to determine whether additional enforcement action is warranted.
Employers should therefore treat previously filed LCAs as continuing compliance records. A prior filing may become relevant if it contains inconsistent job duties, inaccurate worksite information, questionable wage documentation, or facts that conflict with later corporate actions.
“Similarly Situated” Workers May Receive Greater Attention
The Executive Order does not provide a complete definition of “similarly situated” U.S. workers. Existing regulatory concepts may provide a framework for agency analysis.
The phrase may draw on the concept of an “essentially equivalent” position. Agencies may compare:
- Job duties;
- Required education and qualifications;
- Experience and technical skills;
- Occupational classification;
- Wage level;
- Worksite or area of employment; and
- The overall employment conditions.
A U.S. worker does not necessarily need to hold the identical job title to be considered similarly situated. Substantial similarities in duties and qualifications may be sufficient to trigger review.
This issue is particularly important for staffing, consulting, and third-party placement models. A petition may identify one employer, one worksite, and one set of duties while the worker performs services for another entity. Employers using these models should maintain clear documentation showing:
- Who controls the worker’s employment;
- Where the worker will perform services;
- What duties the worker will perform;
- Which entity supervises the work;
- Why the position requires the stated qualifications; and
- How the position differs from any eliminated or reduced U.S. position.
An unsupported statement that a sponsored role is “different” may not resolve the issue. The employer should document the factual distinction through organizational charts, job descriptions, project materials, reporting structures, and business records.
The Executive Order Is Broader Than Existing Nondisplacement Rules
Existing statutory nondisplacement requirements do not apply identically to every H-1B employer.
The principal nondisplacement obligations generally apply to:
- Certain H-1B-dependent employers; and
- Employers found to have committed a willful violation of H-1B requirements.
Those rules also generally focus on a 90-day period before and after the filing of an H-1B petition.
The September 18 Executive Order directs agencies to consider layoffs during the prior year and planned future layoffs. It therefore creates a broader review framework than the existing statutory nondisplacement provisions.
The Executive Order does not itself amend the Immigration and Nationality Act (INA) or the H-1B regulations. It directs executive agencies to use existing authorities, coordinate their review, and develop implementation measures. Agency guidance is expected. The practical meaning of the new review standard may change as the Department of Labor, USCIS, and the Department of State issue instructions, policy memoranda, or other guidance.
The $100,000 H-1B Fee Has Been Renewed
The separate September 18 Proclamation renews the $100,000 payment requirement for certain H-1B visa applications. The requirement was first imposed by the September 19, 2025 proclamation titled “Restriction on Entry of Certain Nonimmigrant Workers.”
The renewed restriction is scheduled to apply for an additional year, beginning at 12:01 a.m. Eastern Daylight Time on September 21, 2026, and continuing through September 21, 2027, subject to further presidential action and applicable court orders.
The payment generally concerns certain H-1B workers outside the United States who require visa processing and admission under a covered petition. It does not automatically apply to every H-1B filing.
Employers must distinguish between:
- A beneficiary outside the United States seeking entry under a covered new petition;
- A beneficiary already in the United States seeking a change of status;
- An H-1B worker seeking an extension;
- An H-1B worker seeking an amendment or transfer; and
- A worker applying for a visa after an approved petition.
The precise application depends on the facts, the proclamation’s terms, agency guidance, and ongoing litigation. Employers should not assume that a filing is exempt or subject to the payment without reviewing the current requirements.
The 2026 H-1B Changes Build on the Weighted Selection System
The September actions follow the December 2025 Department of Homeland Security final rule replacing the random H-1B lottery with a wage-weighted selection system.
The rule first applied to the FY2027 registration season. It assigns greater selection weight to registrations associated with higher wage levels. Wage Level I receives one entry, while Wage Level IV receives four entries under the weighted structure.
USCIS reported approximately 211,600 properly submitted FY2027 registrations, compared with 343,981 for FY2026. The decline was approximately 38.5%, commonly described as almost 40%.
The combination of wage weighting, increased registration costs, the $100,000 payment requirement for certain cases, and heightened layoff scrutiny requires employers to develop a coordinated strategy before filing.
Employer Action Items for H-1B Visa 2026
Employers should take the following steps:
-
Audit recent reductions in force.
Compare layoffs during the previous 12 months with current and planned H-1B-sponsored positions. -
Review planned layoffs.
Coordinate immigration counsel, HR, finance, and business leadership before implementing workforce reductions that may affect sponsored roles. -
Document position distinctions.
Maintain detailed job descriptions, reporting structures, qualification requirements, worksite information, and business justifications. -
Review third-party placement arrangements.
Confirm the actual worksite, supervision, contractual relationships, and duties performed by each H-1B worker. -
Coordinate immigration filings with HR.
LCA filings, H-1B petitions, extensions, amendments, and employment-based green card filings must reflect the employer’s current workforce records. -
Prepare for review at every stage.
Employers should anticipate scrutiny during DOL LCA review, USCIS adjudication, consular processing, and inspection at a port of entry. -
Maintain complete compliance records.
Preserve public access files, wage records, organizational documents, notices, worksite records, and evidence supporting the position’s requirements. -
Confirm the $100,000 fee analysis.
Determine whether the beneficiary’s location, petition type, requested classification, and admission history place the case within the renewed restriction.
Employers should also review their broader workforce compliance procedures. Form I-9 compliance does not replace H-1B obligations, but deficiencies in employment records may create additional enforcement concerns.
Consult Blasingame Law LLC Before Filing or Restructuring
The September 18, 2026 Executive Order and Proclamation create additional risk for employers sponsoring foreign professionals. They also affect foreign workers whose cases involve consular processing, admission, extensions, or changes in employment.
Blasingame Law LLC provides individualized guidance for employers and foreign workers addressing H-1B filing strategy, LCA preparation, workforce compliance, layoffs, third-party placement arrangements, and related employment-based immigration matters. With more than 30 years of experience in corporate and private immigration practice, the firm assists businesses of all sizes with practical and legally grounded solutions.
Contact Blasingame Law LLC or schedule a consultation to discuss your H-1B visa 2026 strategy and compliance obligations. Companies and foreign workers should obtain case-specific advice before filing an H-1B petition, implementing a reduction in force, accepting a new placement, or planning international travel.
