Trump Administration Issues New Executive Orders Restricting Employment-Based Immigration
On Friday, September 18, 2026, the Trump administration took three coordinated actions affecting employment-based immigration: an executive order imposing new H-1B layoff scrutiny, a proclamation extending the $100,000 H-1B fee policy, and a State Department announcement expanding online vetting to TN, TD, and I nonimmigrant categories.
The Layoff Executive Order
The Trump Administration’s Executive Order entitled, Enhancing Program Integrity and Interagency Coordination in the Administration of the H-1B Nonimmigrant Visa Program directs the Secretaries of State, Labor, and Homeland Security to consider, at every stage of the H-1B process — LCA, petition, visa, and entry — whether the sponsoring employer directly or indirectly engaged in layoffs within the previous year or plans future layoffs affecting similarly situated U.S. workers. The order also directs DOL's Wage and Hour Division to begin reviewing previously submitted LCAs to determine whether further action against sponsoring employers is warranted. The order directs the same three agencies to consult with Commerce, Education, and the SBA to gather additional program data (wages, industry conditions, employment specialization).
The $100,000 Fee Proclamation
The Trump Administration’s new Proclamation extends the $100,000 H-1B payment requirement through September 21, 2027, with the same discretionary national-interest exceptions as the 2025 Proclamation. Importantly, the fee remains legally inoperative: the underlying DHS implementing rule was vacated by the U.S. District Court for the District of Massachusetts on June 8, 2026, and the extension is expected to remain similarly blocked pending further judicial clarification.
The New DOS Vetting Policy (I, TN, TD)
Effective October 1, 2026, DOS will expand its online presence review to cover applicants in the I (foreign media), TN (USMCA professional), and TD (USMCA dependent) classifications. This review has already been in place for other nonimmigrant categories since 2025 and was expanded further in March 2026. As of December 15, 2025, it applied to H-1B and H-4 applicants, in addition to F, M, and J students and exchange visitors who were already subject to the review. Effective March 30, 2026, DOS expanded the policy further to A-3, certain C-3, G-5, H-3, certain H-4, K-1, K-2, K-3, Q, R-1, R-2, S, T, and U visa applicants.
What these Changes Mean for Foreign Workers and their Employers
While President Trump’s new H-1B layoff executive order initially appears sweeping, its practical effect is likely to be more limited than the language of the order suggests, though it still creates potentially significant new enforcement risk for employers that have conducted layoffs within the prior year. The order does not create an automatic one-year prohibition on H-1B filings following layoffs. Instead, it directs federal agencies to consider recent and planned layoffs in H-1B adjudications and, most significantly, directs the Department of Labor’s Wage and Hour Division to review existing H-1B filing data for possible employer investigations. This raises the possibility that layoffs—especially in the same occupations or work locations as H-1B employees—could lead to broader DOL scrutiny of wage compliance, benching, worksite practices, LCA posting, occupational classifications, and other H-1B obligations. Employers that have recently implemented reductions in force should therefore expect heightened scrutiny in some cases and should carefully document the business rationale for layoffs and any distinctions between affected U.S. workers and H-1B positions.
We believe the Executive Order is vulnerable to legal challenge on at least two grounds, and expect that it will likely be subject to a federal lawsuit and possible court injunction in the near future. First, neither the Immigration and Nationality Act (INA) nor its implementing regulations impose a layoff bar on H-1B employers generally. That obligation exists for the very few H-1B-dependent employers who do not meet the salary or degree exemption as outlined in our LCA handbook, and willful violators under the non-displacement attestation requirements of the INA. Extending an equivalent bar to all H-1B employers by executive directive, without an act of Congress or even new rulemaking, would appear to raise concerns under the Administrative Procedures Act, and may be considered ultra vires of the statutory law. Second, the order's factual predicate cites no specific agency findings, data, or third-party sources tying layoffs to program abuse, which may be found independently to violate the APA ‘reasoned decision-making’ standards.
For employers and foreign nationals already in H-1B status, the immediate impact of the renewed $100,000 fee proclamation should be relatively limited. The fee is not currently being enforced because the implementing policy was vacated by a federal district court, and the Administration’s prior guidance indicated that the requirement does not apply merely because an individual is already in H-1B status, to ordinary H-1B renewals, or to travel on an existing H-1B visa. The principal uncertainty is the pending appeal: if the Court of Appeals ultimately reverses the district court, the $100,000 requirement could again become enforceable through September 21, 2027. Employers should therefore remain cautious with cases that may require consular processing or a new admission to the United States to effectuate an H-1B approval.
For most TN and TD applicants, the new policy extending social media vetting does not represent a fundamental change in substantive eligibility requirements. It extends screening practice that the Department of State already applies to most other nonimmigrant visa categories. The principal practical effect is likely to be somewhat greater scrutiny of applicants’ online activity and the possibility of additional processing delays where consular officers or Customs and Border Protection (CBP) officers identify information requiring further review. Employers and TN applicants should therefore ensure that publicly available professional and social-media information is consistent with the applicant’s stated occupation, employer, work history, and intended activities in the United States. Social media content may be a basis for visa or admission application denials if consular officers and/or CBP officers identify posts, associations, or activities they determine raise security concerns or demonstrate visa ineligibility.