New H-1B Executive Order and Proclamation Fee Extension

Employer and university guidance on layoffs, interagency review, and the blocked fee

As of September 20, 2026

On September 18, 2026, President Trump signed “Enhancing Program Integrity and Interagency Coordination in the Administration of the H-1B Nonimmigrant Visa Program.” The executive order directs increased coordination and consideration of employer layoffs in H-1B-related decisions. It accompanied a separate proclamation extending the $100,000 payment policy for certain H-1B petitions to September 21, 2027. The fee policy remains vacated; the extension should also remain blocked, subject to judicial clarification. [1–3]

Employers and universities can continue planning H-1B sponsorship under the current court-ordered framework. The renewed focus on displacement does not by itself cure the legal defects in the fee. However, the separate September 18 executive order may produce increased scrutiny of layoffs, wages, and hiring practices even while collection remains blocked. A separate proposed fee exceeding $103,000 is also not a current payment obligation. This bulletin explains these distinct developments and their practical consequences.

1. Three separate measures require separate analysis

The $100,000 measure is a presidential proclamation, although it is frequently described as an executive order. The President also issued a separate H-1B enforcement executive order on September 18. In addition, DHS has proposed a separate regulatory fee for cap-subject petitions. Their legal sources, coverage, and present effects differ. [1, 3, 4]

2. What the extension does

The September 18 proclamation renews the prior entry restriction for another twelve months, beginning at 12:01 a.m. Eastern Daylight Time on September 21, 2026. It retains a $100,000 payment requirement for covered H-1B cases and discretionary national-interest exceptions. Its stated endpoint is September 21, 2027. These provisions describe the executive policy; enforceability remains a separate question. [1]

The extension does not establish an annual $100,000 bill for every existing H-1B employee. Nor should employers infer that every extension of stay, employer change, or international trip creates a new payment obligation. Coverage must be assessed against the applicable implementation rules and court orders.

3. Why the fee remains blocked

The central case is State of California et al. v. Markwayne Mullin et al., No. 1:25-cv-13829 (D. Mass.), filed December 12, 2025. On June 8, 2026, the district court vacated the fee policy in its entirety. The court concluded that the charge functioned as an unauthorized tax and that the policy violated the Administrative Procedure Act. The relevant June 8 relief was a vacatur following summary judgment, rather than merely a preliminary injunction. This distinction matters when describing the policy’s current legal posture. [2, 5]

The district court subsequently stayed its ruling temporarily, allowing collection to resume, and the First Circuit declined in July 2026 to keep the vacatur on hold. Consequently, the current position is that collection remains barred while the government appeals. Filing an appeal does not itself reinstate a vacated policy.

The reason the extension should remain blocked is that it continues the same payment policy already set aside. That is the legal interpretation supporting the present status quo; it should not be described as a separately verified judicial holding specifically adjudicating the September 18 proclamation. If the government argues that the extension creates an independently enforceable requirement, the scope of the existing judgment could require expedited clarification.

Vacatur, a stay, and an injunction have different legal functions. Here, the operative relief described is vacatur of the policy. A stay suspends that relief; denial of a stay leaves the relief operative without necessarily resolving the ultimate merits of the appeal. The litigation therefore remains significant even while employers benefit from the current block.

Displacement was already part of the 2025 proclamation’s justification. The June 8 opinion discusses the asserted replacement of American workers and wage suppression before finding the fee policy unlawful. A renewed emphasis on those concerns therefore does not, by itself, supply statutory authority for the payment. [5]

Our assessment is that a change in emphasis is insufficient to revive the vacated charge. A genuinely different operative policy could require separate judicial analysis, and the government could argue that new action falls outside the earlier judgment. Whether that argument succeeds depends on the substance of the new action and the scope of the relief, not its description alone.

4. Which petitions were affected under the prior policy

Under the prior implementation, the fee generally attached to petitions filed for consular notification or petitions that could be approved only for consular notification. Petitions actually approved with a change of status or extension of stay were exempt. Certain petitions involving beneficiaries with valid H-1B visas were also exempt.

• Consular processing cases: These were the principal exposure category. While the vacatur remains operative, the fee should not be collected merely because a petition requires consular processing.
• Change of status and extension of stay cases: Prior exemptions depended on the requested in-country benefit being approvable. A request on the form alone should not be treated as assurance of exemption if USCIS cannot grant that benefit.
• Employer changes and amendments: Review the requested action, the beneficiary’s status and location, and the resulting approval. The label “transfer” or “amendment” does not resolve every fee question.
• Valid H-1B visa holders: Preserve evidence of the visa and petition history when evaluating historical exemptions. A visa stamp, an approved petition, and an I-94 perform different functions.

These distinctions remain useful for contingency planning if collection resumes. They do not justify paying a currently blocked fee. Counsel should check for revised guidance before applying the former implementation to a future filing.

5. Impact on pending and new adjudications

USCIS should continue adjudicating otherwise eligible petitions without collecting the vacated payment. Employers should continue paying ordinary fees required for the particular filing and complying with all substantive eligibility requirements. Relief from the $100,000 charge does not guarantee approval or remove other filing obligations.

If USCIS requests the payment, rejects a filing for nonpayment, or withholds action on that ground, counsel should preserve the notice, filing proof, and applicable deadlines and promptly assess a response based on the operative court relief. An unexpected demand should be reviewed immediately rather than ignored or automatically paid.

For time-sensitive cases, preserve status and employment-authorization deadlines. Expedite or premium-processing strategies should be evaluated on their own terms; they cannot guarantee protection against a later legal change. Whether future reinstatement would reach pending petitions would depend on the governing order and implementation instructions.

6. Travel and visa applications

Under the prior implementation, USCIS collected the payment during petition adjudication. The Department of State and CBP did not separately collect it at visa interviews or ports of entry, and no separate collection mechanism has been identified at those stages.

Collection and enforcement are nevertheless different questions. The proclamation contains visa and entry-related instructions, so the absence of a payment counter at a consulate or airport does not, standing alone, establish immunity from an entry restriction. The present protection is the operative judicial relief and its application to the renewed policy. [1]

The extension alone should not be read as requiring every H-1B traveler to pay $100,000. Before departure, counsel should review the petition approval, visa validity, I-94, pending requests, and current agency instructions. An employer should not cancel all H-1B travel solely because the extension was announced, but essential travel involving consular activation merits individualized review.

If agencies announce a new enforcement interpretation, affected travelers may face uncertainty before courts clarify the issue. Litigation challenging a new position would not itself guarantee immediate visa issuance or admission. Petition approval, visa issuance, and admission remain separate decisions.

7. Universities and research institutions

The extension does not end universities’ ability to use H-1B sponsorship. The current fee block remains the starting point. Institutions should avoid imposing a blanket sponsorship freeze based only on the renewed proclamation.

Cap exemption and fee exemption are different legal concepts. A university or qualifying research organization may be exempt from the annual H-1B numerical cap without being categorically exempt from the proclamation payment if that policy becomes enforceable again. Overseas recruitment would require particular attention under the prior consular-processing framework.

For planning purposes, institutions should distinguish overseas faculty and researchers requiring consular activation from employees eligible for an in-country extension or change of status. Review actual eligibility, including any impediment to an in-country change, rather than assuming that physical presence in the United States is sufficient.

The separate proposed cap-subject fee presents a different coverage issue: a genuinely cap-exempt petition falls outside a fee limited to cap-subject filings. The petition’s legal basis controls; an affiliation with a university should not substitute for a documented cap-exemption analysis.

Academic departments, international offices, human resources, and counsel should coordinate start dates, grant commitments, travel, and contingency funding. The financial exposure is a scenario to monitor, not a currently established $100,000 charge on every university hire.

For displacement review, universities should document whether a proposed hire fills a new or vacant position and how the position relates to any terminated jobs. Record the actual duties, qualifications, worksite, funding, and reason for separation. A budget reduction elsewhere in the institution does not, without further facts, establish that a particular H-1B hire displaced a comparable U.S. worker.

DOL’s existing guidance excludes grant or contract expiration from its definition of a layoff. This can matter for research appointments, but an institution should document the actual reason employment ended. Whether agencies apply that same distinction under the new executive order requires attention; it is not a blanket exemption from scrutiny. [6]

8. Separate proposed fee above 103000 dollars

DHS separately proposed a fee exceeding $103,000 for cap-subject H-1B petitions in August 2026. The Federal Register identifies the proposal as “Fee for Certain H-1B Petitions,” published August 25, 2026, document 2026-17324. It remains distinct from the proclamation payment. [4]

The proposed regulatory charge could apply in addition to the $100,000 proclamation payment if both measures become enforceable and a petition falls within both. Employers should therefore evaluate potential cumulative exposure rather than assume the regulatory proposal replaces the proclamation policy.

Neither a proposed rule nor a renewed but blocked policy establishes a current combined bill. Final scope, exemptions, effective dates, transition rules, and judicial relief would determine any future obligation. Likewise, the existing judgment against the proclamation policy should not be assumed automatically to invalidate a separate final regulation.

9. What the executive order requires

The September 18 executive order directs interagency coordination and consideration of layoffs within the preceding year or planned layoffs affecting similarly situated U.S. workers. It also directs Labor Department review of previously filed LCAs within 30 days. These instructions are separate from the fee proclamation and should not be assumed blocked by the fee vacatur. [3]

The order may increase inquiries, requests for evidence, and enforcement attention. Employers should maintain accurate job descriptions, wage records, worksite information, and explanations of relevant restructuring. These are practical preparations for possible scrutiny, not a prediction that every employer with layoffs will receive a denial.

Interagency coordination

Section 2 directs State, Labor, and Homeland Security to coordinate and consult with Commerce, Education, and the Small Business Administration on H-1B petitions, LCAs, and visa applications. The latter agencies are to provide relevant wage, employment, academic, industrial, and economic information. The order does not establish a separate adjudicatory panel or require each consulted agency to approve each case. [3]

Review of recent and planned layoffs

Section 3(a) reaches direct or indirect involvement in layoffs within the prior year and planned future layoffs that negatively affect similarly situated U.S. workers. It addresses LCAs, petitions, visas, and H-1B admission. The order does not specify how agencies must weigh those facts, define a new labor-market test, or prescribe automatic denial after layoffs. [3]

For employers, the practical issue is the relationship between a sponsored position and the affected workforce. Counsel should assess duties, qualifications, location, timing, and the reason for a reduction. A layoff announcement warrants factual review; it does not alone resolve whether a particular filing satisfies the governing eligibility requirements.

Review of previously submitted LCAs

Section 3(b) requires the Wage and Hour Division to begin reviewing previously submitted LCA data within 30 days of the order to determine whether further action is warranted under INA §212(n)(2)(G). The deadline is to begin review, not to complete every investigation or impose sanctions. The directive does not itself revoke existing LCAs or petition approvals. [3]

Delegation of existing authority

Under 3 U.S.C. §301, Section 3(c) delegates the President’s INA §215(a) authority to the Secretaries of State, Commerce, Labor, and Homeland Security to the extent necessary to implement the order, including through rules, policies, and guidance. This is a delegation of identified existing authority, not an unlimited new grant of legislative power. Implementation remains subject to applicable law. [3]

Existing legal limits on nondisplacement requirements

Existing H-1B nondisplacement obligations generally apply to H-1B-dependent employers and willful violators, subject to applicable exemptions. DOL’s framework compares core duties, qualifications, experience, and commuting area and uses specified 90-day periods around petition filing or placement. It does not establish a universal prohibition on every H-1B hire following a layoff. [6]

The executive order’s one-year review instruction should not be conflated with these existing statutory and regulatory obligations. An agency attempt to impose a new categorical denial rule across all employers would raise separate statutory-authority and Administrative Procedure Act questions. The order’s direction to act consistently with law remains significant. [3]

Implications for the fee litigation

Protecting U.S. workers may support lawful investigations and enforcement of existing duties. It does not automatically authorize a $100,000 payment or establish that the renewed fee is outside the court’s judgment. Equally, a successful challenge to the payment does not immunize an employer from a properly grounded displacement or wage investigation. The two issues require separate legal analysis.

10. What the order does not change

The order itself does not eliminate H-1B classification, change the annual numerical cap, create a PERM-style labor certification requirement, directly revise prevailing-wage levels, or supply a new employer filing form or documentary checklist. It directs agency action now; employers should not assume that all implementation must await a new regulation. [3]

Changes to statutory limits require legislation. Other measures may require rulemaking, lawful guidance, or case-specific enforcement, depending on their substance and the authority invoked. Agencies cannot create authority they do not possess by labeling a substantive change as operational guidance.

11. Related policies and developments to monitor

The executive order and fee extension are separate components of the administration’s broader H-1B agenda. The White House also identifies wage-weighted selection and prevailing-wage rulemaking as related measures. Each has its own legal basis and implementation status; the fee judgment should not be assumed to suspend every related initiative. [7]

Agency guidance may clarify the meaning of similarly situated workers, treatment of indirect layoffs, evidence requested, and coordination across petition, visa, and admission stages. Increased inquiries or enforcement are possible consequences of the order, rather than specified outcomes for every sponsor.

Possible reforms to PERM recruitment and layoff rules are separate from this executive order. This order neither amends PERM regulations nor establishes the substance or timing of a future PERM proposal. Employers should evaluate any published proposal on its own terms rather than treat industry expectations as current law.

Future implementing measures could face litigation concerning statutory authority, procedural requirements, or consistency with existing law. A challenge does not automatically suspend a measure, and the outcome of litigation over one fee or rule does not determine the validity of another.

12. Immediate employer action items

• Continue otherwise appropriate sponsorship under the current court-ordered framework, with ordinary filing fees and eligibility requirements.
• Identify pending and planned cases requiring consular activation and cases dependent on approval of an in-country change or extension.
• Recheck court developments and agency instructions immediately before filing, payment decisions, visa appointments, and significant travel.
• Preserve records of any prior $100,000 payments. Vacatur should not be treated as proof that an automatic refund procedure exists; evaluate recovery separately.
• Budget conditionally for possible reinstatement and for the separate proposed fee, while keeping current liabilities distinct from future scenarios.
• Keep hiring managers and employees informed using dated guidance. Escalate any unexpected payment request or inconsistent agency treatment promptly.
• Review recent and planned reductions in force with immigration and employment counsel. Preserve evidence explaining whether sponsored positions are comparable to affected jobs; universities should also preserve grant and contract records.

Employer planning conclusion

The fee extension should remain blocked, subject to judicial clarification. Employers may nevertheless face increased scrutiny of displacement, layoffs, wages, and hiring practices under the separate executive order. Continue eligible sponsorship while documenting the facts needed to address that scrutiny and monitoring changes in the courts and agency guidance.

Sources and scope

The extension’s continued coverage by existing judicial relief is a legal interpretation subject to court clarification. The fee litigation remains ongoing, and agency implementation of the separate displacement order must be evaluated against governing law. The following sources address the presidential actions, June vacatur, proposed fee, and existing displacement rules.

[1] White House proclamation of September 18, 2026
[2] New York Attorney General announcement of the June 8, 2026 vacatur
[3] White House executive order of September 18, 2026
[4] Federal Register proposal published August 25, 2026
[5] District court memorandum and order of June 8, 2026
[6] DOL Fact Sheet 62N on displacement of US workers
[7] White House fact sheet of September 18, 2026

General information for employers and foreign nationals. Individual filing and travel decisions require review of the applicable facts and current law.