Had Layoffs This Year? Your H-1B Petitions Just Got a New Layer of Scrutiny
If your company had layoffs in the past year, or is planning them, that history can now follow your H-1B filings through every stage of the process, from the labor condition application to the visa stamp to the border itself. Nobody, including the agencies enforcing it, can yet say exactly how.
What the order actually does
On September 18, President Trump signed an executive order directing the Departments of Labor, Homeland Security, and State to consider an employer’s recent or planned layoffs at every stage of an H-1B case: the labor condition application (LCA), the H-1B petition itself, the visa application, and even entry into the United States.
Specifically, agencies must now weigh whether a sponsoring employer has, directly or indirectly:
conducted layoffs within the previous year;
planned future layoffs; and
had layoffs that negatively affect "similarly situated" US workers.
The order also pulls in the Departments of Commerce and Education and the Small Business Administration to supply wage, employment, academic, and industry data agencies can use when reviewing cases.
The phrase doing all the work: "similarly situated"
A company-wide layoff does not automatically disqualify an employer from sponsoring H-1B workers, the order is written around whether laid-off workers were doing work similar to the position being sponsored. But the administration has not defined what counts as similarly situated, and has not said what documentation employers will need to provide to show they are compliant.
Xiao Wang, CEO of the immigration platform Boundless, framed the practical confusion well: a large company might lay off warehouse workers in one city while trying to hire an H-1B software engineer in a completely different city and role, and it is not yet clear whether that counts against them.
It reaches backward, not just forward
This is not limited to new filings. Within 30 days of the order, the Department of Labor’s Wage and Hour Division must begin reviewing data from LCAs employers have already filed, to determine whether further enforcement action is warranted. In plain terms: petitions you already filed and thought were behind you could still draw fresh scrutiny.
The other H-1B news from the same week
In a separate proclamation issued the same day, September 18, the administration extended its disputed $100,000 H-1B fee policy for another year, through September 21, 2027. On paper, that fee still applies to certain petitions for workers outside the US.
In practice, it currently cannot be collected. A federal court struck the fee down in June as an unlawful tax, and on July 24 the First Circuit Court of Appeals refused to let the government reinstate it while its appeal proceeds. USCIS has said it will comply with that order and is not collecting the fee for now. So employers are dealing with two H-1B changes issued on the same day, one immediately relevant (layoff scrutiny) and one still blocked in court (the $100,000 fee) but formally extended anyway.
What to actually do
You had layoffs in the past 12 months. Before filing new H-1B petitions, review how closely those layoffs relate to the role, location, and duties of the position you are sponsoring, and loop in immigration counsel early.
You are planning layoffs. Consider the timing relative to any pending or upcoming H-1B filings, since the order also covers layoffs an employer plans, not just ones already carried out.
You filed an LCA in the past year, even if the case is already approved. That filing could still be reviewed under the Department of Labor’s 30-day directive. Keep your records on layoffs and workforce data organized and accessible.
You are an H-1B worker at a company with recent layoffs. This does not necessarily affect your existing status, but it could complicate future petitions, extensions, or a new employer’s ability to sponsor you. Ask your employer’s immigration counsel directly rather than assuming.
Everyone tracking H-1B costs. The $100,000 fee is extended on paper but not currently collectible. Do not budget for it as an active cost unless the appeal changes that, but do not assume it is gone permanently either.
Frequently asked questions
Does one company-wide layoff automatically block all H-1B sponsorship?
No. The order specifically targets layoffs affecting "similarly situated" workers, not layoffs generally, though the administration has not defined that term yet.
Do I have to pay the $100,000 H-1B fee right now?
No. It was extended on paper through September 2027, but a court order currently blocks its collection while the government’s appeal continues.
Can this affect an H-1B petition I already filed?
Possibly. The Department of Labor must review data from previously filed LCAs within 30 days of the order, which could lead to further enforcement action.
When will we know how agencies define "similarly situated"?
No timeline has been given. Agencies are expected to issue implementation guidance, but none has been published yet.
This article is for information only and is not legal advice. Implementation details for this order are still developing; confirm your specific situation with a qualified immigration attorney.
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