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IMMIGRATION OCTOBER 02, 2026 | The Indian Eye 34

Additional H-1B Barriers Outside the Statute:

The September 18 Executive Order on Layoffs and

the Extension of the $100,000 Proclamation

tions about statutory authority, entry also cover workers seek- Homeland Security to the ex- every layoff by every H-1B em-
BY CYRUS MEHTA implementation, and reach. ing visa issuance at a consulate tent necessary to implement the ployer merely because H-1B
n September 18, 2026, The Executive Order Reaches or admission at a port of entry. order, including through rules, workers remained employed.
President Trump is- Every Stage of the H-1B Process Section 2 establishes an policies, operational guidance, A layoff is not itself unlawful
Osued an executive order The order directs the Sec- interagency consultation pro- or other guidance. under § 274B; there must be a
entitled Enhancing Program retaries of State, Labor, and cess. When processing H-1B Reciting these statutory basis to investigate whether a
Integrity and Interagency Co- Homeland Security to take into petitions, LCAs, and visas for provisions does not establish covered discharge involved pro-
ordination in the Administra- account, in “any labor condition workers seeking entry to per- that they authorize the new in- hibited national-origin or citi-
tion of the H-1B Nonimmigrant application, petition, visa, and form services in a specialty oc- quiry. Sections 101(a)(15)(H)(i) zenship-status discrimination.
Visa Program. Issued alongside entry” of an H-1B nonimmi- cupation, the Departments of (b) and 214(i) define the H-1B Nor does § 274B convert the
a proclamation extending for grant, whether the sponsoring State, Labor, and Homeland classification and specialty occu- anti-discrimination inquiry into
another year the controversial employer directly or indirectly Security must coordinate with pation; section 212(n) governs a new H-1B petition-eligibility
$100,000 payment requirement engaged in layoffs during the the Departments of Commerce the LCA framework and con- requirement administered by
for certain H-1B cases, the ex- previous year or plans future and Education and the Small tains Congress’s targeted dis- DOL, USCIS, or the State De-
ecutive order directs the De- layoffs that negatively affect Business Administration. The placement rules; section 274B partment. The executive order’s
partments of Labor, Homeland similarly situated United States stated objective is to ensure prohibits specified unfair im- invocation of § 274B may there-
Security, and State to scrutinize workers. Its wording is strikingly compliance with the statutory migration-related employment fore enable information sharing
an H-1B employer’s layoffs and broad. It does not confine the requirements governing H-1B practices; and section 215(a) or referrals to DOJ, but it cannot
contemplated layoffs through- inquiry to cap-subject petitions, classification, LCAs, specialty concerns presidential restric- supply the missing statutory au-
out the H-1B process. The two initial employment, or workers occupations, and unfair immi- tions and rules governing depar- thority for those agencies to im-
measures do different work: the applying for visas abroad. By re- gration-related employment ture and entry. None expressly pose a program-wide layoff test.
executive order seeks to inject ferring to any petition, the order practices, including INA §§ directs agencies to treat any prior This is an important depar-
a new layoff inquiry into agen- appears to reach extensions of 101(a)(15)(H)(i)(b), 212(n), or planned layoff by every H-1B ture from the existing statutory
cy decision-making, while the stay, amendments, changes of 214(i), and 274B. Commerce, employer as an adjudicative scheme. Congress expressly
proclamation continues an en- employer, and other H-1B fil- Education, and the SBA are di- factor. The delegation to issue addressed layoffs and displace-
try restriction tied to a large pay- ings adjudicated by USCIS. Its rected to supply relevant wage, implementing guidance likewise ment in INA § 212(n)(1)(E), 8
ment. Both raise serious ques- separate references to visas and employment, academic, indus- cannot enlarge the substantive U.S.C. § 1182(n)(1)(E), which
trial, and other economic authority Congress granted. requires an H-1B-dependent
information. The order That does not necessar- employer—or an employer
thus contemplates that ily mean the Administration found to have committed a
agencies not ordinarily re- lacks every avenue to examine willful failure or misrepresen-
sponsible for adjudicating a layoff. INA § 274B, 8 U.S.C. tation—to attest that it did not
H-1B petitions or LCAs § 1324b, may provide a back- and will not displace a U.S.
will feed broader economic door—but only from a discrim- worker during the period be-
data into the process. ination angle. Section 274B ginning 90 days before and
Section 3 supplies the makes it an unfair immigra- ending 90 days after the filing
order’s operative directives. tion-related employment prac- of the H-1B petition. Congress
First, it instructs State, La- tice to discriminate in hiring, also addressed secondary dis-
bor, and Homeland Secu- recruitment or referral for a fee, placement in INA § 212(n)(1)
rity, purportedly consistent or discharge because of national (F), 8 U.S.C. § 1182(n)(1)(F),
with INA §§ 101(a)(15) origin or, in the case of a statu- when such an employer places
(H)(i)(b), 212(n), 214(i), torily protected individual, citi- an H-1B worker with another
215(a), and 274B, to take zenship status. The Department employer. And Congress care-
into account in any LCA, of Justice’s Immigrant and Em- fully defined an “H-1B-depen-
petition, visa, and H-1B en- ployee Rights Section may in- dent employer” by reference to
try whether the sponsoring vestigate a charge, and the Spe- the proportion of its workforce
employer directly or indi- cial Counsel may also initiate an in H-1B status in INA § 212(n)
rectly engaged in layoffs investigation, when the statuto- (3)(A), 8 U.S.C. § 1182(n)(3)
during the preceding year ry predicates are met. Thus, if (A), while exempting certain
or plans future layoffs that an employer allegedly retained highly paid or highly educat-
negatively affect similar- H-1B workers while discharging ed H-1B workers from these
ly situated U.S. workers. similarly situated U.S. citizens, additional attestations under
m of Second, it directs the Wage permanent residents, refugees, INA § 212(n)(3)(B), 8 U.S.C. §
CYRUS D. MEHTA & PARTNERS PLLC and Hour Division, within or asylees because of citizen- 1182(n)(3)(B). These provisions
30 days, to begin review- ship status—or made discharge demonstrate that Congress was
ing data relating to previ- decisions on the basis of na- concerned about displacement

ously submitted LCAs to tional origin—the government by H-1B-dependent employers
determine whether further could investigate that alleged and willful violators, not layoffs

 
   
­ action against sponsoring discrimination under § 274B, by every H-1B employer. The
€
‚   employers is warranted subject to the statute’s coverage, executive order, by contrast,
under INA § 212(n)(2)(G). protected-individual definition, directs agencies to consider lay-
Third, invoking 3 U.S.C. § exceptions, limitation periods, offs by any sponsoring employer
301, it delegates the Pres- and allocation of national-origin over a one-year lookback period
ident’s authority under jurisdiction with the EEOC. and even planned future layoffs.
2 6th Floor INA § 215(a) to State, But § 274B does not au- It also invokes layoffs under-

    Commerce, Labor, and thorize a roving inquiry into taken “indirectly,” a term that

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