An executive order signed on 18 September tells US immigration agencies to weigh an H-1B sponsor's layoffs from the past year. Coverage has focused on the $100,000 fee. The order asks for a view of workforce data that most HR systems cannot produce.
Two things happened on 18 September, and much of the coverage merged them. A proclamation extended the $100,000 payment on certain new H-1B petitions to 21 September 2027. Then, on 30 September, a federal district court in California blocked the agencies from enforcing it until they complete formal rulemaking, alongside an earlier Massachusetts ruling now before the First Circuit. USCIS says it will collect the payment if the court orders are lifted. For employers, the fee is now a contingency: something to budget for and track, not yet something to pay.
The second action has had less attention and is not stuck anywhere. An executive order on "program integrity" in the H-1B system directs the Departments of State, Labor and Homeland Security, when reviewing petitions, labor condition applications and visas, to "take into account" whether the 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". It also tells the Labor Department's Wage and Hour Division to begin reviewing data from previously filed labor condition applications within 30 days, to decide whether further action against sponsors is warranted. That clock runs out around 18 October.
What changed, in plain terms
Layoffs have mattered in H-1B filings before, but narrowly. Employers classed as H-1B dependent, or found to be wilful violators, already attest that they have not displaced US workers in equivalent jobs within 90 days either side of a petition. The order takes a version of that question to every sponsor, stretches the lookback to a year, adds layoffs that are only planned, and turns it into a factor the agencies weigh rather than a box the employer ticks.
It does not define "similarly situated", or "indirectly". The order leaves both to agency guidance, and none has been issued. Until it is, the cautious assumption is that an adjudicator could compare any role you are sponsoring with roles you eliminated in the previous twelve months that share an occupation, a location or both, and that work moved to a staffing supplier or an outsourcer could be read as an indirect layoff.
The order doesn't only ask whether you made layoffs. It asks whether you can show that the people you let go were not doing the job you now want to sponsor.
The join most HR systems cannot make
Answering that question means connecting three sets of data that usually live apart.
Separation data lives in the HRIS: who left, from which job code, at which location, for what recorded reason. Reductions in force are often coded inconsistently, sometimes as voluntary where a settlement was signed, and reason codes rarely distinguish "position eliminated" from "position eliminated and the work moved elsewhere".
Sponsorship data lives in immigration case management, often run by outside counsel or a specialist platform. It describes roles in Standard Occupational Classification codes, wage levels and worksites chosen for the petition, and is rarely mapped back to the employer's own job architecture.
Supplier data lives in procurement or a vendor management system: which work went to a staffing firm or outsourcer, when, and whether the supplier's people now do what employees used to.
The order effectively asks for a crosswalk between the three. Most employers have never built one, because nothing required it. Internal job codes do not map neatly to SOC codes, and a code chosen to support a wage level may not be the one a layoff comparison would use. It is the same job-architecture problem this publication described last month for EEO-1 categories, applied to a different code set and with a more immediate consequence. Many HR teams will discover the gap the first time a request for evidence asks them to close it.
Figure 1
What an adjudicator may ask | Where the answer usually sits | Typical gap |
|---|---|---|
Did the sponsor make layoffs in the past year? | HRIS separations, RIF trackers, WARN notices | Inconsistent reason codes; some RIFs recorded as voluntary exits |
Were those workers similarly situated? | Internal job codes versus SOC codes on the petition | No maintained crosswalk between job architecture and SOC |
At the same worksite? | HRIS location versus the LCA worksite | Remote and hybrid roles assigned to nominal locations |
Did the work move to a supplier? | Vendor management system, statements of work | Engagements not linked to the positions they replaced |
Are layoffs planned? | Workforce plans, board papers | Confidential and held outside any HR system |
The data the order implies, and where it breaks. Editorial assessment of common gaps, not survey data. The agencies have not yet defined "similarly situated" or "indirectly".
What to put in place now
Own the crosswalk. Build a mapping from internal job codes to SOC codes, give it a named owner and version history, and agree it with immigration counsel so the same mapping supports both the petition and any layoff comparison.
Clean the last twelve months. A one-year lookback means separations from autumn 2025 are already in scope. Reason codes for any reduction in force in that period are worth reviewing now, before anyone outside the organisation asks.
Check before drafting, not after. Flag requisitions likely to lead to sponsorship and compare them with recent eliminations at the point of approval, so that a conflict is found by HR rather than by an adjudicator.
Link suppliers to positions. Where a supplier engagement replaced eliminated roles, record that link in the vendor management system. It is the evidence that will be hardest to reconstruct later.
Keep the fee in the workflow. If the injunctions are lifted, the payment applies to new petitions for beneficiaries outside the United States. Recruiting and finance will want to know which open offers would carry it, ideally before candidates do.
The planned-layoffs clause is the hardest to manage. Workforce plans are among the most confidential documents an organisation holds and sit nowhere near the HR system, yet the clause is most likely to be tested on a petition filed in the middle of a restructuring. How hard the agencies press on it will be clearer once guidance appears. The data work does not need to wait for that.
Sources and notes. Executive order "Enhancing Program Integrity and Interagency Coordination in the Administration of the H-1B Nonimmigrant Visa Program", signed 18 September 2026; quotations are from section 3(a) and the Wage and Hour Division instruction from section 3(b), as published by the White House. Proclamation 11069 of 18 September 2026, extending the payment requirement under Proclamation 10973 to 21 September 2027. The 30 September 2026 order in Global Nurse Force v. Trump (federal district court, California) and the Massachusetts decision on appeal to the First Circuit, as reported by Ogletree Deakins (2 October 2026); USCIS statement on collecting the payment if orders are lifted. Fee scope (new petitions for beneficiaries outside the US or requesting consular notification) per agency guidance as reported. The 90-day non-displacement attestation applies to H-1B-dependent employers and wilful violators under the Immigration and Nationality Act. Whether the California order applies nationwide had not been confirmed at the time of writing. HRHubsMedia has no commercial relationship with any vendor or firm named. Journalism, not legal advice. Corrections welcome.
