What’s Happening
On September 18, 2026, President Trump issued a new Executive Order titled “Enhancing Program Integrity and Interagency Coordination in the Administration of the H-1B Nonimmigrant Visa Program,” directing federal agencies to consider an employer’s recent or planned layoffs when reviewing H-1B cases. The White House also issued a Fact Sheet explaining the Administration’s broader focus on H-1B compliance and enforcement.
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 (“LCA”) or 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 Order does not mean that an employer cannot sponsor H-1B workers simply because it has had layoffs. It does not create an automatic denial rule or a new labor-market test. Instead, it makes layoffs a factor that agencies must consider when reviewing H-1B cases. The Administration has not yet provided any public-facing guidance on how the fact of a layoff will impact H-1B adjudications or what information and documentation a sponsoring employer must provide in the event of a layoff.
What You Need to Know
Layoffs may now come up at multiple stages of the H-1B process. The new Order applies beyond USCIS review of an H-1B petition. An employer’s layoff activity may also be considered when DOL reviews an LCA, when an employee applies for an H-1B visa, and when an H-1B employee seeks admission to the United States.
This means that the same workforce reduction could come up more than once during an H-1B case. For now, however, the Order does not explain how much weight agencies should give to layoffs or what additional information employers may be asked to provide. We expect additional agency guidance on how this will work in practice.
Both recent and planned layoffs matter. Agencies are directed to consider layoffs that occurred within the past year, as well as planned future layoffs, if they negatively affect “similarly situated” U.S. workers.
This is broader than the existing nondisplacement rules that apply to certain H-1B-dependent employers and willful violators. Those rules generally focus on covered layoffs within 90 days before and after an H-1B petition is filed by a covered employer. The new Order uses a one-year lookback, includes planned future layoffs, and is not limited on its face to H-1B dependent employers and willful violators.
Federal agencies will share more information when reviewing H-1B cases. DOL, DHS, and DOS are directed to coordinate with the Departments of Commerce and Education and the Small Business Administration. These agencies may provide wage, employment, academic, industry, and other economic information relevant to H-1B cases.
Exactly how this information will affect individual cases is not yet clear. Employers should expect more guidance as the agencies begin implementing the Order.
DOL will also review previously filed LCAs. This part of the Order is not limited to new H-1B cases. Within 30 days, DOL’s Wage and Hour Division must begin reviewing data from previously submitted LCAs to determine whether further enforcement action may be appropriate.
For employers, this means the new initiative may affect more than upcoming filings. Employers with existing H-1B workers should make sure their LCA records and related H-1B compliance documentation are accurate and up to date.
What This Means for Employers
The new Order does not prevent employers that have had layoffs from sponsoring H-1B workers. The basic H-1B filing requirements have not changed, and a layoff does not automatically result in the denial of an H-1B petition.
However, employers that had layoffs within the past year or are planning future layoffs should be prepared for additional questions about how those layoffs relate to their H-1B workforce. This may include whether laid-off U.S. workers and sponsored H-1B workers have similar positions, job duties, qualifications, or work locations.
Employers should also take this opportunity to review their H-1B and LCA records. With DOL directed to review previously filed LCAs, employers should make sure that wage information, job classifications, worksites, and other H-1B compliance records are accurate and up to date.
What Remains Unclear
We are still waiting for details on how the new Order will work in practice. Among other things, the Order does not explain how agencies will determine whether U.S. and H-1B workers are “similarly situated,” how much weight they will give to past or planned layoffs, or what additional information employers may be asked to provide.
The Order allows federal agencies to issue new rules, policies, and guidance to implement these requirements. Until that guidance is issued, employers should expect some uncertainty in how the new requirements will be applied from case to case.
What to Expect Next
Agency Implementation: D&S will be closely monitoring DHS, DOL, DOS, and USCIS guidance regarding how prior and planned layoffs will be incorporated into H-1B adjudications and what additional evidence, if any, employers will be expected to provide.
DOL Compliance Activity: DOL's Wage and Hour Division is required to begin reviewing previously submitted LCA data within 30 days of the Order. Employers should therefore anticipate increased attention to H-1B and LCA compliance as implementation proceeds.
Potential Additional Rules and Guidance: The Order expressly provides agencies with authority to issue implementing rules, policies, operational guidance, and other guidance. Employers should expect the practical requirements to become clearer as those agencies act.
Stay Tuned: This Is a Developing Issue
D&S will continue to monitor implementation of the Executive Order and any resulting changes to H-1B adjudication and enforcement practices. Employers contemplating H-1B sponsorship following recent or planned workforce reductions should consult immigration counsel regarding the potential impact on specific H-1B filings.
This alert is for general informational purposes only and does not constitute legal advice. Please consult D&S immigration counsel regarding your specific circumstances. D&S Senior Associate, Paulina Baginska, assisted with the preparation of this alert.