What employers and foreign professionals should know about the September 2026 actions
Saluja Law | Immigration Law Update | September 22, 2026
On September 18, 2026, President Donald Trump issued a presidential proclamation extending for another year an entry restriction tied to certain H-1B workers outside the United States. The same day, the President issued a separate executive order directing several federal agencies to coordinate more closely when reviewing H-1B filings, including by considering certain employer layoffs. Together, the measures signal continued scrutiny of the H-1B program, but their legal and practical effects are not identical.
The most important point is that the new proclamation does not create an entirely new H-1B system. It extends a policy first announced in September 2025 that generally conditioned the entry of certain H-1B workers on a $100,000 payment by the petitioning employer. That payment requirement is presently the subject of active litigation. A federal district court vacated the policy in June 2026, and the government appealed. The proclamation preserves the administration's policy position while the courts continue to consider whether the executive branch had authority to impose the payment requirement.
What the proclamation provides
The proclamation invokes sections 212(f) and 215(a) of the Immigration and Nationality Act and restricts the entry of certain individuals seeking admission in H-1B status unless the related petition is accompanied or supplemented by a $100,000 payment. The extension is intended to operate for 12 months beginning September 21, 2026, and continuing until September 21, 2027, unless it is extended again.
By its terms, the restriction focuses on individuals who are outside the United States and must seek admission to give effect to an H-1B petition, including through consular processing, inspection at a port of entry, preflight inspection, or preclearance. Employers filing for an individual outside the United States are directed to obtain and retain documentation of the payment, while the Departments of State and Homeland Security are directed to coordinate implementation.
The proclamation also retains a discretionary national-interest exception. The Secretary of Homeland Security may determine that the restriction should not apply to an individual, to workers employed by a particular company, or to workers within an industry when their employment is in the national interest and does not threaten the security or welfare of the United States. The text does not create an automatic exemption for any particular occupation or industry.
The administration's stated reasons
The administration describes the extension as a labor-market and program-integrity measure. The proclamation states that some employers, particularly certain information technology staffing and outsourcing firms, have used the program to hire lower-paid labor and displace U.S. workers. It also points to unemployment and underemployment among recent college graduates, wage concerns, fraud, and national-security considerations.
In support of the extension, the proclamation reports substantial changes after the 2025 policy and a new weighted H-1B selection process. According to the White House, combined registrations by the largest IT staffing and outsourcing firms fell from 24,946 to 2,055, consular-processing requests declined by nearly 97 percent between the fiscal year 2025 and fiscal year 2027 cap seasons, and the share of registrants with at least a U.S. master's degree increased. The proclamation attributes these developments to the combined effect of the payment requirement and the weighted selection process.
Those figures reflect the administration's assessment of the policies. They do not, by themselves, resolve the separate legal question of whether the President may require the payment under the cited immigration statutes.
The court challenge remains central
On June 8, 2026, Judge Leo T. Sorokin of the United States District Court for the District of Massachusetts ruled that the $100,000 requirement functioned as an unauthorized tax and vacated the implementing policy. The administration appealed. In July 2026, the United States Court of Appeals for the First Circuit declined to stay the district court's ruling while the appeal proceeds. As a result, the payment requirement remains blocked at this time, even though the President has issued a proclamation extending the underlying policy.
This procedural posture matters. The new proclamation states what the administration intends the policy to be, but it does not itself overturn the district court's judgment or the First Circuit's refusal to pause that judgment. Further appellate proceedings could change the operative legal landscape. Employers and prospective H-1B workers should therefore verify current agency instructions before relying on either the proclamation's text or earlier filing practices.
A separate executive order increases scrutiny
The September 18 executive order addresses H-1B program administration more broadly. It directs the Departments of State, Labor, and Homeland Security to consult with the Departments of Commerce and Education and the Small Business Administration when processing labor condition applications, petitions, visas, and admission requests. The participating agencies may exchange relevant wage, employment, academic, industrial, and economic information.
The order also directs adjudicators to 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. In addition, the Department of Labor is instructed to review data from previously submitted labor condition applications to determine whether further action against sponsoring employers may be warranted.
How agencies will apply these instructions remains to be seen. Existing law imposes specific recruitment and displacement obligations on H-1B-dependent employers and willful violators. The order may produce more questions, document requests, investigations, or requests for evidence, particularly where a petitioner has recently reduced its U.S. workforce. At the same time, an executive order cannot independently amend the governing statute, and the limits of agency authority may become the subject of future administrative or judicial review.
Practical considerations for employers and workers
Employers considering new H-1B sponsorship should first determine whether the beneficiary is inside or outside the United States, whether the filing would require consular processing or later admission, and whether the employer has conducted or announced layoffs affecting comparable positions. Petitioners should also preserve clear records concerning the business need for the position, the specialty-occupation requirements, the offered wage, the beneficiary's qualifications, recruitment efforts when relevant, and the relationship between any workforce reductions and the proposed H-1B role.
Foreign professionals should exercise particular care before international travel. A person with an approved petition may still encounter a separate visa or admission issue, and the applicable rules may change as the appeal and agency implementation proceed. Before departing the United States, the worker and employer should review the approval notice, visa requirements, travel history, anticipated port-of-entry process, and the most recent guidance from the Departments of State and Homeland Security.
The September 2026 actions do not affect every H-1B case in the same way. Extensions of stay, amendments, changes of employer, cap-subject petitions, cap-exempt petitions, consular cases, and travel after approval can present different questions. Individualized review is particularly important while the payment litigation remains unresolved and agencies develop procedures under the new executive order.
Looking ahead
The administration has made clear that it intends to continue reshaping the H-1B program around higher wages, higher skill levels, closer interagency coordination, and increased attention to employer layoffs. The courts, however, will continue to determine whether particular measures fall within executive and agency authority. For employers and foreign professionals, the immediate challenge is to distinguish announced policy from currently enforceable requirements and to prepare filings that can withstand closer scrutiny.
Saluja Law will continue to monitor the litigation and agency guidance. Employers and H-1B professionals with questions about a planned filing, consular processing, travel, or the effect of a workforce reduction should obtain advice based on the facts of the individual case.
Disclaimer: This article provides general information and does not constitute legal advice. Immigration law and agency practice can change quickly. Readers should consult qualified counsel regarding their specific circumstances.