On September 18, 2026, President Donald J. Trump signed two actions affecting H-1B sponsorship: a Proclamation extending the H-1B $100,000 entry-restriction framework for another year, and a new Executive Order directing federal agencies to scrutinize H-1B applications more closely, particularly from companies that have laid off employees.
Extending the $100,000 H-1B Fee
By its own terms, the new Proclamation extends Proclamation 10973 that was issued on September 19, 2025 (hereinafter the “2025 Proclamation”):
The restrictions enacted by the 2025 Proclamation have proven to be highly effective but the underlying conditions necessitating the restrictions persist. It is therefore in the interests of the United States to extend the 2025 Proclamation for an additional 12 months, until 12:00 a.m. eastern daylight time on September 21, 2027.
The new $100,000 Proclamation is an extension of 2025 Proclamation, which is not currently enforceable. As covered in our prior alert, on June 8, 2026, the U.S. District Court for the District of Massachusetts vacated the agency policy implementing the 2025 Proclamation on four independent grounds. The government appealed and on July 24, 2026, the U.S. Court of Appeals for the First Circuit denied the government’s motion to stay the district court’s judgment pending appeal. Accordingly, the vacatur stands while the government’s appeal proceeds. While the court order is in place, employers sponsoring H-1B workers abroad do not have to include the $100,000 entry fee.
USCIS has not updated its website following issuance of the September 18, 2026 Proclamation. Consistent with the above, the website continues to recognize that the fee is not owed at this time:
On June 8, 2026, the U.S. District Court for the District of Massachusetts issued an order that vacated agency guidance implementing the $100,000 payment requirement for certain H-1B petitions… DHS strongly disagrees with the court’s order and filed a motion to stay pending appeal with the United States Court of Appeals for the First Circuit (First Circuit)… On July 24, 2026, the First Circuit denied the government’s motion. DHS strongly disagrees with the First Circuit’s order denying the stay request but will comply with the court’s order while DHS considers next steps.
Litigation Continues
Interestingly, the September 18, 2026 Proclamation does not reference the ongoing litigation yet the First Circuit appeal remains pending, and the Massachusetts court’s ruling conflicts with another district court’s ruling in a separate lawsuit that allowed the fee to stand. There is still uncertainty whether a higher court will review the case. Employers should closely monitor future court decisions and government guidance.
What This Means for Employers and Sponsored Employees
Employers recruiting foreign talent and H-1B professionals who may need to enter the United States from abroad should be mindful that despite the pause on the $100,000 fee, the extension of the Proclamation signals the Administration’s continued focus on restricting the use of H-1B workers.
What the New Executive Order Requires
The new Executive Order, Enhancing Program Integrity and Interagency Coordination in the Administration of the H-1B Nonimmigrant Visa Program, directs the various agencies to review H-1B program integrity with a key focus on protecting U.S. workers. Indeed, the Executive Order notes “employers have laid off large numbers of highly skilled American workers, only to promptly hire large numbers of H-1B workers who are often lower-skilled and lower-paid.”
The Executive Order directs the Secretaries of State, Labor, and Homeland Security to coordinate with the Secretaries of Commerce and Education, and the Small Business Administration when reviewing H‑1B petitions, labor condition applications, and visa applications to ensure compliance with H-1B statutory requirements. The Secretaries of Commerce and Education, and the Small Business Administration are directed to share relevant wage, employment, academic, industrial, or other economic data to assist with this review.
Additionally, the Executive Order directs the Secretary of State, the Secretary of Labor, and the Secretary of Homeland Security to take into account, in any labor condition application, H-1B petition visa, or entry, whether the employer sponsor directly or indirectly engaged in layoffs within the previous year or plans future layoffs that negatively affect the employment of similarly situated United States workers. As part of this review to determine whether layoffs negatively impacted U.S. workers, Secretary of Labor is directed, within 30 days of the Order, to begin reviewing previously submitted labor condition applications to determine whether further action against sponsoring employers is warranted. This review is expected to consider available indicia of layoffs, such as WARN Act notifications to state regulatory bodies, layoff disclosures in PERM applications to the Department of Labor, and media reporting, on layoffs affecting similarly situated U.S. workers when evaluating H-1B-related applications and petitions.
What These Developments Mean for Employers
The Executive Order signals greater scrutiny of H‑1B filings, especially for companies that have recently laid off U.S. workers or rely heavily on H‑1B labor, including for example, certain third-party placement groups and outsourcing firms.
The extended $100,000 entry restriction remains unenforceable while the court order stands, but it does confirm the Administration’s intention to keep the framework in place once the litigation is resolved.
For H‑1B applicants, the Executive Order does not directly change visa eligibility requirements, but it could lead to more intensive review and enforcement of existing program rules particularly where there is concern that U.S. workers have been laid off, disadvantaged or displaced.
Employers that sponsor H-1B workers should consider the following steps:
- Review layoffs conducted within last 12 months and prospective layoff plans and discuss with immigration counsel how the reductions may be viewed for pending or future H-1B petitions;
- Review and audit H-1B compliance including accuracy of job descriptions, worksites, wages, labor condition applications, public access files as well as any third-party placement arrangements;
- Work with immigration counsel to establish internal protocols for responding to government inquiries;
- Work with immigration counsel to develop protocols to ensure H-1B compliance, including timely assessment of potential job changes so any required amendments can be filed in advance of the change;
- Monitor future announcements from the Department of Homeland Security, Department of State, Department of Labor and the White House regarding implementation of the Executive Order and related program review.
Looking Ahead
The extension of the H-1B entry restriction framework, paired with the new Executive Order’s scrutiny provisions, indicates that the Administration continues to prioritize its H-1B enforcement strategy. Employers and foreign national employees should assess any planned H-1B filings, international travel, and workforce mobility initiatives in light of these developments.
If you have questions about how these developments may affect your organization, your H-1B workforce, or upcoming international travel, please contact your Klasko attorney to discuss compliance considerations and strategic planning options.
The material contained in this post does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
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