Quick Hits
- The executive order directs the secretaries of state, labor, and homeland security to consider whether an employer conducted layoffs within the prior year or plans future layoffs affecting similarly situated U.S. workers when adjudicating H-1B-related filings.
- Employers could see additional scrutiny at multiple points in the H-1B process, including DOL Labor Condition Application (LCA) review, U.S. Citizenship and Immigration Services (USCIS) petition adjudication, consular visa issuance, and admission at the border.
- Additional agency action may be needed to determine how the directive will be applied in practice.
Background
The H-1B program permits U.S. employers to temporarily employ foreign nationals in specialty occupations. An employer generally must obtain a certified labor condition application (LCA) from the U.S. Department of Labor before filing Form I-129, Petition for a Nonimmigrant Worker, with U.S. Citizenship and Immigration Services (USCIS).
The State Department may become involved in visa processing when the worker is abroad, and U.S. Customs and Border Protection may review the worker’s admissibility at the port of entry. Existing LCA attestations address wages, working conditions, strikes or lockouts, notice, and related employer obligations.
Certain H-1B-dependent employers and willful violators also face additional recruitment and nondisplacement obligations for covered nonexempt H-1B workers. Those nondisplacement rules generally focus on certain layoffs during the ninety-day period before and after the filing of an H-1B petition supported by the LCA.
Key Provisions of the Executive Order
The executive order, “Enhancing Program Integrity and Interagency Coordination in the Administration of the H-1B Nonimmigrant Visa Program,” does not, on its face, amend the Immigration and Nationality Act (INA) or the H-1B regulations. Instead, it directs the agencies to incorporate layoff and labor-market information into H-1B administration to the extent consistent with existing law and authorizes implementing rules, policies, operational guidance, or other guidance.
First, the secretaries of state, labor, and homeland security must consider whether a sponsoring employer directly or indirectly engaged in layoffs during the prior year or plans future layoffs that negatively affect similarly situated U.S. workers. The directive applies when the agencies adjudicate H-1B-related LCAs, petitions, visas, and entries.
Second, DOL, DHS, and the State Department must consult with the U.S. Department of Commerce, the U.S. Department of Education, and the U.S. Small Business Administration to obtain wage, employment, academic, industrial, and other economic information relevant to the administration of the H-1B program.
Third, within thirty days, the DOL’s Wage and Hour Division must begin reviewing data related to previously submitted LCAs to determine whether additional enforcement action is warranted under existing H-1B provisions.
Impact on Employers
The executive order may lead to closer agency review of H-1B filings when a sponsoring employer has recently conducted, or is planning, a reduction in force involving positions similar to sponsored H-1B roles. Employers may need to address the relationship between workforce reductions and sponsored positions across the relevant filing record.
The directive is broader than the existing statutory nondisplacement rules because it reaches layoffs during the prior year and planned future layoffs, rather than focusing only on the existing ninety-day window. It also may apply to all H-1B employers, not only H-1B-dependent employers and willful violators. Employers could face scrutiny at multiple points, including DOL LCA review, USCIS petition adjudication, consular processing, and admission at the border.
For H-1B-dependent employers and willful violators, the executive order may renew attention to existing recruitment and nondisplacement requirements, including inquiries involving secondary employers in third-party placements.
The phrase “similarly situated” may draw on existing regulatory concepts addressing “essentially equivalent” jobs, which compare responsibilities, required qualifications, and area of employment. Consulting, staffing, outsourcing, and other third-party placement models may face particular scrutiny because those arrangements can raise displacement questions at client worksites.
Next Steps
The executive order leaves significant implementation details to forthcoming agency guidance, which will determine how DOL, DHS, and the State Department incorporate layoff-related information into H-1B adjudications. Information on how the directive will apply in practice is not yet known.
Ogletree Deakins’ Immigration Practice Group will continue to monitor developments and will provide updates on the Immigration and Reductions in Force blogs as additional information becomes available.
For additional insight into the critical immigration issues facing employers today, please join our Virtual Immigration Insights Symposium on Wednesday, October 7, 2026, from noon to 2:30 p.m. ET. Register here.
This article and more information on how the Trump administration’s actions impact employers can be found on Ogletree Deakins’ Administration Resource Hub.
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