H-1B Policy Strikes Twice in One Day: The $100,000 Fee Extended to 2027, and Layoff Records Enter Adjudication Consideration for the First Time

U.S. immigration policy is tightening once again. On September 18, 2026, the Trump administration announced two major policy changes closely related to the H-1B visa in a single day: first, extending the much-discussed $100,000 H-1B supplemental fee through September 21, 2027; and second, signing a new executive order that for the first time formally incorporates employers' layoff history as a factor in the adjudication of H-1B petitions. The immigration team at [Law Firm Name] promptly reviewed and analyzed both policies and offers this summary for the reference of corporate employers and H-1B applicants.

Policy 1: The $100,000 Supplemental Fee Extended for Another Year

According to the announcement issued on September 18, 2026, the $100,000 supplemental fee for new H-1B petitions—first introduced in September 2025—has been extended through September 21, 2027. The fee primarily applies to applicants who are outside the United States and need to enter the country through a newly approved H-1B petition or the consular visa process, including:

• Applicants who have received H-1B status for the first time but have not yet entered the United States;

• Applicants who must apply for a visa at a U.S. embassy or consulate abroad;

• Applicants who have been approved but must depart the United States and re-enter on the approval notice to activate their status.

It is worth noting that this fee has faced legal challenges since its inception. In June 2026, a federal court in Massachusetts ruled that the fee announcement was legally flawed and suspended its enforcement, and the related litigation is still ongoing. This means that although the executive branch has announced an extension, the fee is effectively suspended pending the outcome of the litigation. Even so, the administration's policy direction is clear—employers and applicants should factor this potential cost into their long-term planning rather than letting their guard down simply because collection has been temporarily paused.

Policy 2: Employers' Layoff History Formally Becomes a Factor in H-1B Adjudication

The executive order signed the same day requires the Department of Labor (DOL), the Department of Homeland Security (DHS), and the Department of State to scrutinize, at every stage of the H-1B process—including the Labor Condition Application (LCA), the H-1B petition itself, visa issuance, and inspection at entry—whether the petitioning employer has any record of layoffs. The agencies are also required to share labor market data with the Department of Commerce, the Department of Education, and the Small Business Administration to inform their assessments. Specifically, the executive order directs the relevant agencies to evaluate whether the employer:

• Has conducted layoffs, directly or indirectly, within the past year; and

• Has any planned layoffs that could affect U.S. workers "similarly situated" to the H-1B position in question.

In addition, the DOL's Wage and Hour Division has been directed to conduct a retrospective review of previously approved LCAs within 30 days, and the possibility of follow-up enforcement actions against past filings cannot be ruled out.

It should be pointed out that the specific criteria for determining "similarly situated" employees and the scope of what constitutes "indirect layoffs" remain undefined. There are also legal questions as to whether the executive order went through the necessary formal rulemaking procedures. This means the policy carries considerable uncertainty both in terms of its implementation details and potential judicial review. What is certain, however, is that the adjudication standards have tightened—employers can no longer simply assume that a complete filing will sail through.

What This Means for Employers

For companies that are currently petitioning, or planning to petition, for employees under the H-1B program, the following proactive measures are recommended:

• Compile a record of any layoffs over the past year, including timing, departments affected, and headcount, and prepare written explanations in anticipation of possible inquiries;

• Carefully evaluate the timing of hiring and layoff plans, particularly situations where layoffs and pending H-1B petitions overlap within the same period;

• Retain compliance documentation—including wage records, notice obligations, and non-displacement-related materials—to demonstrate the compliance of the company's layoff and hiring decisions;

• Factor the $100,000 fee into budget projections; even though it is currently suspended due to litigation, contingency plans should be in place should the fee take effect again.

What This Means for Applicants

For individuals who are job hunting, preparing to file an H-1B petition, or facing the lottery, renewal, or a change of status, it is advisable to look beyond the completeness of one's own application and also take into account the prospective employer's recent business conditions and any layoff activity—because adjudicators will now weigh these factors alongside your petition.

This article is provided for general informational purposes only and does not constitute specific legal advice. Individual circumstances vary, and any specific course of action should be based on an assessment by a qualified attorney.