New Executive Order Directs Federal Agencies to Weigh Employer Layoffs in H-1B Visa Decisions

For years, U.S. employers seeking to sponsor foreign professionals through the H-1B visa program have navigated a process built primarily around paperwork: a certified labor condition application, an approved petition, and, for applicants outside the country, a successful visa interview at a U.S. consulate. A new executive order signed by the President on September 18, 2026, titled "Enhancing Program Integrity and Interagency Coordination in the Administration of the H-1B Nonimmigrant Visa Program," adds a different kind of question to that process: has this employer, or does it plan to, lay off similarly situated American workers?

Under the order, the Secretaries of Labor, Homeland Security, and State are directed to consider whether a sponsoring employer "directly or indirectly engaged in layoffs within the previous year or plans future layoffs" affecting comparably situated U.S. workers. That consideration is meant to apply at multiple points in the H-1B pipeline: when the Department of Labor certifies a labor condition application, when U.S. Citizenship and Immigration Services adjudicates a petition, when a consular officer abroad reviews a visa application, and when a traveler seeks admission at a U.S. port of entry. The three lead agencies are also directed to coordinate with the Departments of Commerce and Education and the Small Business Administration on relevant labor-market and economic data.

The order goes further than existing safeguards already built into the H-1B program. Federal law has long included a non displacement requirement for certain "H-1B dependent" employers — generally those with a high proportion of H-1B workers — barring them from replacing a laid-off U.S. worker with an H-1B hire within a defined window, typically 90 days before or after the H-1B filing. The new order is not limited to H-1B-dependent employers and is not limited to a 90-day window: it directs agencies to look back over the prior year and forward at planned layoffs, for any sponsoring employer, not only those that meet the existing dependency threshold.

The order also sets one concrete near-term deadline. Within 30 days, the Department of Labor's Wage and Hour Division must begin reviewing historical labor condition application data to determine whether enforcement action is warranted against employers under existing wage and disclosure requirements. Beyond that 30-day review directive, much of the order's practical effect will depend on implementing guidance the affected agencies have not yet issued. Terms central to the order — including what counts as a "similarly situated" worker and how layoff activity will be weighed in practice — are not defined in the order itself, and immigration practitioners following the rollout have noted that significant operational detail is still to come.

The order's stated rationale centers on protecting the U.S. labor market: the administration has pointed to concerns that H-1B workers are sometimes used to replace domestic employees or paid less than similarly qualified U.S. workers, despite statutory equal-pay requirements built into the program. Observers tracking the broader push to tighten H-1B enforcement have raised separate questions about how workable a standard covering "any employer, any layoff" will be to apply consistently, and about whether it invites the kind of litigation that has already challenged other recent H-1B measures.

Because the H-1B program is used by employers across the country, in fields ranging from technology and engineering to healthcare, finance, and academia, and because it directly affects workers both inside the United States and abroad awaiting consular processing, the order's reach is not limited to any single state or region. An employer with a pending or planned H-1B filing, a foreign worker awaiting a decision on a change of status or extension, and an applicant overseas preparing for a consular interview are all potentially affected by how agencies begin applying this layoff-history standard in the weeks ahead — regardless of where in the country the employer is based or where abroad the applicant currently lives.

For now, the order functions primarily as a directive to federal agencies rather than a fixed set of new rules applicants can follow with certainty. Employers evaluating a new H-1B sponsorship, or workers weighing the timing of a filing, are operating in a period where the underlying legal framework for H-1B eligibility has not changed, but the practical scrutiny applied to that framework is expected to increase as agencies begin issuing guidance to implement the order.

Anyone with a pending or upcoming H-1B matter — whether an employer considering a new sponsorship, a foreign professional awaiting a decision, or a family weighing a move tied to a visa case — is welcome to contact Baltazard Law Office to discuss how these developments may affect their specific situation. The firm represents immigration clients nationwide, working directly with each client rather than through case managers, and in English, Spanish, Haitian Creole, and French.

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Sources

1. "Enhancing Program Integrity and Interagency Coordination in the Administration of the H-1B Nonimmigrant Visa Program" — https://www.whitehouse.gov/presidential-actions/2026/09/enhancing-program-integrity-and-integrity-and-interagency-coordination-in-the-administration-of-the-h-1b-nonimmigrant-visa-program/ — The White House, Presidential Action (September 18, 2026)
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3. "Executive Order Calls for Interagency Review of Employer Layoffs in H-1B Filing Process" — https://natlawreview.com/article/executive-order-calls-interagency-review-employer-layoffs-h-1b-filing-process — The National Law Review
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5. "Executive Order Calls for Interagency Review of Employer Layoffs in H-1B Filing Process" — https://ogletree.com/insights-resources/blog-posts/executive-order-calls-for-interagency-review-of-employer-layoffs-in-h-1b-filing-process/ — Ogletree Deakins (September 19, 2026)

By Baltazard Law Office