The Two Actions
The White House signed two recent actions on September 18, 2026: 1) Proclamation 10973, and 2) Executive Order 14431 on “Enhancing Program Integrity and Interagency Coordination in the Administration of the H-1B Nonimmigrant Visa Program”.
For highly-skilled foreign nationals, temporary H-1B visas are usually the only option for them to be employed in the United States long term. For employers seeking to hire foreign national employees, these developments can come with increased expense, greater uncertainty, and heightened scrutiny if the proposed actions take effect.
Proclamation 10973 and Executive Order 14431
Temporary H-1B visas are usually the only option for highly skilled foreign nationals to be employed in the United States long-term. Proclamation 10973 was extended for another year until September 21, 2027, and imposed a $100,000 fee for new H-1B visa petitions.
According to Proclamation 1097, the purpose of the proclamation is to combat severe abuses carried out through the H-1B nonimmigrant visa program. The alleged abuses include “undermining American workers and posing a threat to the labor market that would be detrimental to the interests of the United States”.
This fee continues to be blocked by a court order. In June, U.S. District Court Judge Leo T. Sorokin, in the District of Massachusetts, sided with a coalition of 20 states and granted the plaintiff’s motion for summary judgment challenging the $100,000 fee on the entry of new H-1B visa holders. Judge Sorokin ruled that the policy implementing the Proclamation was unlawful and vacated the policy entirely.
In July, the Trump Administration filed a motion to stay Judge Sorokin’s decision in the U.S. Court of Appeals for the First Circuit. The court rejected this motion, and an appeal on this decision is pending at the Federal Appeals Court.
Employers that had layoffs in the last six months are subject to additional obligations under the Immigration and Nationality Act to sponsor green cards or permanent labor certification (“PERM”) for foreign national employees. Executive order 14431 ordered federal agencies to closely scrutinize H-1B applications with a focus on companies that laid off employees. The order requires the Secretaries of State, Labor, and Homeland Security (DHS) to account for an employer’s recent or anticipated layoffs of similarly situated U.S. workers when reviewing H-1B labor condition applications, petitions, and visa applications.
The Big Picture
Due to the heightened scrutiny on H-1B filings, employers may need to be ready to demonstrate and document why an H-1B position is valid and the ways in which their H-1B hiring complies with the law.
Although there may be no immediate action required, that does not mean employers should take a passive approach.
Klug Law Firm can assist with the following:
- Understanding when paying this $100,000 fee is required.
- Responding to Requests for Evidence requested by U.S. Citizenship and Immigration Services.
- Assessing the risks of hiring new employees following recent layoffs.
Contact our experts now!