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IMMIGRATION OCTOBER 02, 2026 | The Indian Eye 35

is not defined. The order does not itself fore be assessed by reference to the text mation. It reflected a particular moment dent cannot evade an operative judicial
create an automatic bar, a new attesta- governing which petitions and workers when Indian outsourcing companies were order simply by extending or reissuing
tion, or a formal labor-market test, but are covered, along with any implementing among the program’s most visible users. the underlying proclamation. According-
it invites agencies to treat facts that Con- guidance and judicial rulings. The procla- The IT industry has since undergone par- ly, the new proclamation may purport to
gress made dispositive only for specified mation should not be casually conflated adigm shifts in cloud computing, product continue the fee through September 21,
employers and within carefully drawn pe- with the executive order’s broader direc- development, artificial intelligence, cy- 2027, but the fee should remain unen-
riods as relevant across the program. tion to consider layoffs in any petition. An bersecurity, remote work, and the global forceable while the nationwide vacatur
Can the Agencies Implement a New Layoff H-1B extension filed for a worker already organization of technical talent. Whatever remains in effect.
Criterion Without Rulemaking? in the United States may fall within the criticism may fairly be directed at particu- The extension does not resolve the
The legality of the order will turn executive order’s petition language even lar outsourcing models, a 2007 quotation fundamental question whether the Presi-
largely on what the agencies do next. The when the proclamation’s entry-based pay- cannot substitute for current evidence dent may condition the filing or approval
Immigration and Nationality Act permits ment requirement does not apply. about the diverse employers, occupations, of an H-1B petition on a payment of this
an H-1B petition when the statutory and The proclamation touts what it de- and business models that now use the magnitude. The proclamation relies on
regulatory requirements are satisfied. scribes as measurable effects of the 2025 H-1B program. presidential entry authority, but Congress
Neither the President nor an agency may proclamation and the subsequent DHS Indeed, the proclamation’s own evi- established the H-1B petition process and
add a free-floating eligibility requirement final rule. It states that the largest IT dence exposes the overbreadth of its ap- prescribed the fees that accompany it. A
that Congress did not enact. If USCIS staffing and outsourcing firms reduced proach. If the asserted concern is concen- measure that effectively rewrites those
were to deny an otherwise approvable their combined H-1B registrations from trated use of the cap by a discrete group statutory conditions may exceed an entry
extension merely because the employer 24,946 to 2,055—a 92 percent decline— of outsourcing firms, a blanket $100,000 restriction and intrude upon Congress’s
had conducted unrelated layoffs, or if and points to a nearly 97 percent decrease payment imposed on covered employers immigration scheme. Litigation over the
DOL refused to certify an LCA based on in consular-processing requests between across the economy is a poorly tailored original proclamation and its implemen-
a consideration outside its statutory certi- the FY 2025 and FY 2027 cap seasons. response. It prices out smaller and mis- tation will therefore remain highly rele-
fication function, the agency action would Those figures may show that the measures sion-driven employers while allowing the vant to the extended measure.
be vulnerable to challenge as contrary sharply suppressed use of the program, largest and wealthiest companies to treat What H-1B Employers Should Expect
to law and arbitrary and capricious. Any but they do not establish that the program the payment as another cost of doing Until the agencies publish imple-
generally applicable substantive standard became more lawful or that U.S. workers business. The resulting reduction in filings menting rules or guidance, employers
may also require notice-and-comment benefited. A decline in filings is not, by may therefore reveal less about program should expect questions about workforce
rulemaking rather than implementation itself, evidence that the filings displaced integrity than about the government’s reductions at the LCA, petition, visa, and
through unpublished criteria, requests for U.S. workers or involved fraud. Nor does success in making the H-1B unavailable admission stages. Employers filing exten-
evidence, or ad hoc adjudications. a reduction in consular-processing re- to employers without extraordinary re- sions as well as new petitions should be
The order leaves basic questions un- quests distinguish between outsourcing sources. prepared to explain the occupations, loca-
answered. Who is a “similarly situated” firms and ordinary U.S. employers seek- More immediately, the $100,000 pay- tions, timing, and business reasons associ-
U.S. worker? Must the layoff involve the ing to bring a needed professional to the ment is currently blocked. On June 8, 2026, ated with recent layoffs and to distinguish
same occupation, worksite, corporate en- United States. the U.S. District Court for the District of affected positions from the sponsored
tity, or geographic labor market? What The proclamation’s focus on large Massachusetts vacated the DHS and State H-1B role. They should also preserve
makes a layoff “indirect”? How can an IT outsourcing firms also obscures the Department actions implementing the records showing compliance with exist-
employer establish that a possible future breadth of the burden. The $100,000 2025 proclamation in State of California ing wage, notice, and nondisplacement
reduction will not negatively affect U.S. payment does not fall only on Indian v. Mullin, No. 1:25-cv-13829, concluding obligations. At the same time, employers
workers? Without objective standards, outsourcing companies. It affects every that the agencies had acted unlawfully in should not assume that any layoff makes
employers may receive inconsistent treat- covered employer, including start-ups, requiring the payment. On July 24, 2026, an H-1B filing unlawful; the executive or-
ment among DOL, USCIS, consular hospitals, universities, research organi- the United States Court of Appeals for der says that layoffs are to be considered,
posts, and Customs and Border Protec- zations, manufacturers, professional-ser- the First Circuit denied the government’s but it does not announce a categorical
tion. The uncertainty is especially acute for vices firms, and other businesses that motion to stay that judgment pending ap- prohibition.
extensions involving employees who have may need to sponsor a worker who is peal. USCIS has acknowledged that it will Conclusion
long been working in the United States abroad. The proclamation acknowledges comply with the order while considering The September 18 order attempts to
and whose continued employment would that more than 700 employers have paid further steps. Thus, although the appeal turn layoffs into a program-wide H-1B ad-
not cause the employer’s earlier layoffs. the charge. But 700 employers represent remains pending and the government judication factor, reaching not only work-
The Directive to Review Previously only a small fraction of the potential em- may seek additional relief, the implement- ers who will enter the United States but
Submitted LCAs ployer population associated with the ing policies cannot presently be enforced. also, on its face, petitions filed for workers
The order separately directs the 65,000 regular annual cap, the separate The September 18 proclamation ex- already here. The proclamation operates
Department of Labor’s Wage and Hour advanced-degree allocation, and the tends the duration of the same $100,000 differently by extending an entry-related
Division to begin reviewing data relating substantial universe of cap-exempt em- payment requirement; it does not elim- payment requirement for another year.
to previously submitted labor condition ployers. The more telling question is how inate the legal defects identified by the Neither measure supplies the standards
applications to determine whether action many employers and workers abandoned Massachusetts court. The existing vacatur needed for predictable adjudication, and
against sponsoring employers is warrant- otherwise viable cases because no rational is directed at the agency actions imple- neither gives the agencies license to dis-
ed. This retrospective review may lead to hiring decision could absorb an additional menting that payment requirement and regard the limitations Congress placed
investigations concerning wages, worksite $100,000 payment. should therefore prevent DHS and the on their authority. The decisive questions
postings, benching, displacement, or the The proclamation further invokes an State Department from collecting the will arise in implementation: whether the
accuracy of information supplied with an Indian commerce minister’s characteriza- payment under the extension as well, un- agencies adopt lawful, transparent stan-
LCA. Yet an LCA is largely an attesta- tion of the H-1B as an “outsourcing visa.” less the judgment is stayed, reversed, or dards or use the directives to impose new
tion-based filing, and DOL’s authority to That statement was made in 2007, almost the agencies adopt materially different eligibility rules through enforcement and
reject or investigate it remains bounded two decades before the present procla- lawful implementing action. The Presi- case-by-case adjudication.
by statute. The directive cannot retroac- ________________________________________________________________________________________________________________________________________________________________________________________________
tively transform a lawful filing into a vio- Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner of Cyrus D. Mehta
lation merely because the employer later & Partners PLLC in New York City. Mr. Mehta is a member of AILA’s Administrative Litigation Task Force; AILA’s EB-5 Com-
reduced its workforce. mittee; former chair of AILA’s Ethics Committee; special counsel on immigration matters to the Departmental Disciplinary
The Proclamation Extends the $100,000 Pay- Committee, Appellate Division, First Department, New York; member of the ABA Commission on Immigration; board member
ment Requirement of Volunteers for Legal Services and board member of New York Immigration Coalition. Mr. Mehta is the former chair of the
The accompanying proclamation, Board of Trustees of the American Immigration Council and former chair of the Committee on Immigration and Nationality
Restriction on Entry of Certain Nonim- Law of the New York City Bar Association. He is a frequent speaker and writer on various immigration-related issues, including
migrant Workers, extends through Sep- on ethics, and is also an adjunct professor of law at Brooklyn Law School, where he teaches a course entitled Immigration and
tember 21, 2027, the $100,000 payment
requirement first imposed in 2025 for cov- Work. Mr. Mehta received the AILA 2018 Edith Lowenstein Memorial Award for advancing the practice of immigration law
ered H-1B cases involving workers out- and the AILA 2011 Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the
side the United States. Unlike the execu- immigration field. He has also received two AILA Presidential Commendations in 2010 and 2016. Mr. Mehta is ranked among
tive order, the proclamation is framed as a the most highly regarded lawyers in North America by Who’s Who Legal – Corporate Immigration Law 2019 and is also ranked
restriction on entry. Its scope must there- in Chambers USA and Chambers Global 2019 in immigration law, among other rankings.

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