Trump Order Tells Labor, DHS and State to Weigh Employer Layoffs in H-1B Cases; Labor Dept. Must Start Reviewing Past Filings by About Oct. 18

Layoffs Then Hiring: The Same Company, Two Different Questions

A tech company cuts 500 jobs in March. In July, it files paperwork to bring in H-1B workers for a different set of roles. Both things are legal. Both things happen at plenty of companies every year. The question an executive order signed on Sept. 18, 2026 forces into the open is whether those two facts belong in the same conversation^[1].

President Trump's order does not answer that question by itself. It tells three federal agencies — Labor, Homeland Security and State — to start asking it, every time, at every stage of the H-1B visa process^[2][4]. The order does not stop a company that just laid off workers from hiring H-1B employees. It just makes sure someone looks at the layoffs before signing off^[4][5].

That distinction — between a new rule and a new question — is where nearly all the disagreement in this story lives.

What the Order Actually Does, and Where the One Real Deadline Sits

The H-1B visa lets U.S. companies hire foreign workers who have college-level skills, usually in fields like tech, engineering and finance^[1][2]. To get one, an employer has to clear a paperwork trail: first a labor condition application filed with the Labor Department, then a petition, then the worker applies for a visa abroad, then shows up at the U.S. border^[3][4].

The Sept. 18 order adds a factor at each of those four stops. Agencies must now consider whether the sponsoring company laid off "similarly situated" U.S. workers in the past year, "directly or indirectly," or plans to^[2][4][14]. Nobody has defined what "similarly situated" or "indirectly" means yet. That's not a side detail — it decides how far the order reaches. If "indirectly" ends up covering a staffing contractor's client, for instance, a lot more companies could get pulled into review than if it's read narrowly^[2][14].

Only one piece of this comes with an actual clock running. Within 30 days — around Oct. 18, 2026 — the Labor Department's Wage and Hour Division has to start reviewing labor condition applications that companies already filed^[2][3]. Those forms are where employers promise to pay a certain wage and meet other conditions, and the department usually just certifies them without digging in. Now some of that paperwork already on file could become the basis for opening an investigation^[2][3][5]. No other agency in the order has a matching deadline, and no employer faces a new compliance date of their own^[2][3].

The same day, Trump signed a separate proclamation extending a $100,000 fee on H-1B petitions through Sept. 21, 2027^[7][8]. That fee has been frozen since June, when a federal judge in Massachusetts vacated it, and a federal appeals court declined to revive it in July while the government appeals^[8]. So the fee is technically extended and simultaneously unenforceable — a detail easy to miss if a story only mentions the extension.

Congress Wrote a Narrower Rule Already — This Is the Gap the Order Steps Into

Immigration lawyers who've read the order closely point to something specific: Congress already addressed layoffs in H-1B law. Certain employers have to attest that they didn't displace a U.S. worker in the 90 days before or after filing, and won't in the 90 days after^[7]. That's a defined window, a defined group of employers, and a defined promise.

The new order reaches further than that. It covers layoffs going back a full year instead of 90 days, adds "indirect" layoffs that the statute doesn't mention, and applies the layoff check to companies the existing law doesn't single out^[4][14]. Critics — mostly immigration lawyers, since major left-leaning outlets haven't weighed in — argue that's the President creating an eligibility test Congress never wrote into the Immigration and Nationality Act^[14][16]. They expect legal challenges once agencies start applying the order to real cases, similar to the fight already playing out over the $100,000 fee^[8][16].

Employer-side law firms, who represent the companies actually filing these visas, describe a practical problem underneath the legal one. Companies routinely lay off staff in one part of the business while hiring in another — cutting sales jobs while still struggling to find enough AI engineers, say. Treating a layoff in one department as evidence against a hire in a different one punishes ordinary restructuring, in their view^[2][3][14]. With scrutiny now possible at four separate points in the process, they say employers need clear rules to plan around, and undefined terms leave them guessing at their own risk^[2][3][14].

The White House's Number, and Why It's Doing So Much Work

The order itself cites a specific figure to justify all this: tech-sector employers collectively laid off somewhere between 800,000 and 1.3 million American employees from 2022 through 2026, while those same employers requested H-1B visas for hundreds of thousands of workers^[1]. That range is the administration's own claim. It has not been independently verified by outside researchers or fact-checkers^[1].

Sen. Jim Banks, R-Ind., makes the same case in plainer language. He says outsourcing and tech firms have "routinely exploited" the H-1B program to replace Americans with lower-paid foreign workers, and that the order finally lets agencies connect layoff data to visa filings they weren't comparing before^[6]. Seen this way, the order isn't a new law — it's enforcement of protections restrictionists say were always supposed to exist.

The White House also points to a fallout it treats as an early win: registrations from the largest IT staffing and outsourcing firms have fallen 92% since the $100,000 fee and a new weighted lottery took effect, from 24,946 down to 2,055^[7]. That's also the administration's own count, and it doesn't distinguish how much of the drop comes from the fee, the lottery, or this latest order, since all three measures have landed close together.

Whose Workers, Whose Risk

Because most H-1B holders are Indian nationals, Indian and diaspora outlets have covered this order less as an abstract legal question and more as the latest item in a stack of U.S. restrictions landing on one group of workers^[13]. The Quint frames it alongside the fee extension as "two new Trump orders" reshaping H-1B scrutiny in the same month^[13]. Coverage there centers on firms like TCS, Infosys and Wipro, heavy users of the visa program that would face the most scrutiny under an "indirect" layoff standard, since outsourcing firms route workers through client companies^[13].

That's a different lens from the legal-trade coverage in the U.S., which asks whether the order survives a court challenge. It's also a different lens from the White House's framing, which is about protecting American workers. All three descriptions can be accurate at once — they're just answering different questions about who this order is for.

One gap is worth naming plainly: no major U.S. left-leaning national outlet — not the New York Times, not the Washington Post, not MSNBC or the Guardian — turned up sustained coverage of this order. The critical case against it came almost entirely from immigration lawyers and legal explainers, not from left-leaning political media^[16]. Right-leaning outlets, meanwhile, described the order in more forceful terms than its text supports — PJ Media wrote of the program's "rot," RedState called it a "federal investigation," WLT Report said employers were "on notice"^[10][11][12]. The order itself only instructs agencies to "consider" layoffs; it doesn't investigate, ban, or put anyone on notice by its own terms^[2][4].

Whatever the agencies decide "similarly situated" and "indirectly" mean, that guidance hasn't been written yet. Until it is, every company with a recent layoff and an open H-1B filing is waiting to find out which side of an undefined line it falls on.