Vice President JD Vance has spent the past week warning U.S. companies that lay off American workers and then seek H-1B workers could face greater scrutiny.
But there is an important distinction between what Vance is saying and what has actually changed in immigration law.
On September 24, Vance warned corporate America that the administration would not allow companies to lay off American workers and replace them with what he described as cheaper foreign labor through the H-1B program. On September 27, he went further, saying the H-1B program “should not exist to replace American workers with low-wage foreigners.”
Those statements did not, by themselves, create a new H-1B restriction.
There is, however, a policy change already in effect that makes the warnings more significant: President Trump signed an executive order on September 18 directing federal agencies to consider an employer’s recent or planned layoffs of similarly situated U.S. workers when reviewing H-1B-related applications and visas.
That is the part H-1B workers and employers need to watch.
What Vance actually said
Vance’s recent comments focused on companies that claim they need H-1B workers while also laying off large numbers of U.S. employees.
In his September 27 video message, he described the administration’s approach as an effort to make sure companies use H-1B workers for highly skilled roles rather than as lower-cost replacements for American workers.
He has also indicated that the administration does not expect Congress to pass a major legislative rewrite of the H-1B system.
That matters because it points toward the administration continuing to use executive orders, agency rules, enforcement and visa-adjudication practices rather than waiting for Congress to rewrite the statute.
But that is a statement about the administration’s approach, not a new immigration rule.
The September 18 executive order is the real change
President Trump signed the executive order titled “Enhancing Program Integrity and Interagency Coordination in the Administration of the H-1B Nonimmigrant Visa Program” on September 18.
It directs the Departments of State, Labor and Homeland Security to consider whether an H-1B sponsoring employer has recently carried out, or plans to carry out, layoffs involving similarly situated U.S. workers.
The order also calls for greater sharing of wage, employment, academic and industry information among federal agencies when reviewing H-1B cases.
The Department of Labor’s Wage and Hour Division is also directed to begin reviewing data from previously submitted Labor Condition Applications within 30 days to determine whether further enforcement action is warranted. That puts the initial review deadline around October 18.
This does not mean that every company with layoffs will automatically lose the ability to sponsor H-1B workers.
The order tells agencies what factors to consider. It does not create a blanket ban on H-1B sponsorship by companies that have laid off U.S. employees.
Exactly how agencies will apply the new scrutiny is still developing.
Why the administration is focusing on layoffs
The White House says the H-1B program has been misused by some employers and outsourcing companies to obtain lower-paid foreign labor and displace U.S. workers.
The September 18 order cites technology-sector layoffs between 2022 and 2026 and claims that some companies laid off U.S. workers before hiring H-1B workers. It also cites an administration estimate that technology employers collectively laid off between 800,000 and 1.3 million American employees during that period while seeking hundreds of thousands of H-1B workers.
Those figures are administration claims, not independently established findings.
That distinction matters because the executive order’s stated rationale and the underlying labor-market debate are not the same thing as a finding that every H-1B employer is replacing American workers.
What about the $100,000 H-1B fee?
This is where several different H-1B stories are getting mixed together.
The administration extended the 2025 proclamation imposing a $100,000 payment requirement for certain H-1B workers outside the United States through September 21, 2027. The September 18 proclamation says the restriction applies to certain H-1B specialty-occupation workers who are outside the United States, subject to specified exceptions.
But the payment requirement is currently blocked by the courts.
On June 8, a federal district court in Massachusetts vacated the policy implementing the $100,000 payment requirement. On July 24, the First Circuit denied the government’s request to stay that ruling while the appeal continues. The fee therefore remains unenforceable under the current court order.
So the September 18 proclamation extended the administration’s policy, but it did not make employers start paying the $100,000 again while the court order blocking collection remains in effect.
That distinction is important for anyone seeing headlines saying the fee has been “extended.”
Extended does not mean currently collectible.
Then there is the separate $103,265 proposal
The $103,265 figure is a completely different measure.
On August 25, DHS published a proposed rule that would create a new $103,265 fee for H-1B petitions subject to the annual numerical cap, including petitions eligible for the advanced-degree exemption. The proposed fee would be added to the other applicable fees and payments. See also: The proposed $103,265 H-1B fee: what it means for workers and applicants.
The public-comment period closed on September 24.
But the proposal is not law yet.
No employer currently owes the proposed $103,265 fee simply because the proposal exists. DHS would have to consider the comments and publish a final rule before the new fee could take effect.
This is also why the $103,265 proposal should not be casually described as a replacement for the $100,000 fee. They come from different legal mechanisms and have different scopes.
What this means for H-1B workers right now
If an H-1B worker already has a valid status or approved petition, Vance’s statements do not cancel that status.
The immediate issue is whether the employer sponsoring the worker is likely to receive greater scrutiny because of its workforce decisions.
For employers with recent or planned layoffs involving workers in similar positions, the September 18 executive order creates a new factor that federal agencies are specifically being told to consider.
For someone waiting for an H-1B through the annual cap, the $103,265 proposal is the measure to watch. It is still only a proposed rule, but the comment period has now closed. See also: $100,000 or $103,265? What the viral H-1B fee videos keep getting wrong.
For someone who needs an H-1B petition involving a worker outside the United States, the $100,000 payment remains a separate issue. The administration has extended the proclamation, but the fee is currently blocked by the court order. See also: “H-1Bs getting crushed”: is the $100k fee already blocked? What to actually watch.
And for H-1B workers already in the United States, none of these developments means that a new $100,000 or $103,265 payment is suddenly owed by the employee.
The numbers are getting confusing. Here is the difference
| Measure | Status as of Sept. 28, 2026 | What it does |
|---|---|---|
| Vance’s September statements | Statements, not new law | Warns companies against replacing laid-off U.S. workers with H-1B workers |
| September 18 executive order | In effect | Directs agencies to consider recent or planned layoffs when reviewing H-1B cases |
| DOL LCA review | Directed to begin within 30 days | Reviews previously submitted LCA data for possible enforcement action |
| $100,000 H-1B payment | Extended, but currently blocked by court order | Applies under the administration’s proclamation to certain H-1B workers outside the U.S. if the court block is lifted |
| $103,265 H-1B fee | Proposed, not in effect | Would apply to H-1B cap-subject petitions, including the advanced-degree exemption |
What to watch next
The next important date is around October 18, when the Department of Labor’s 30-day window for reviewing previously submitted LCA data under the executive order comes due.
That could provide the first indication of how aggressively the administration intends to use employer layoff history in H-1B enforcement.
The other major question is the $103,265 proposal. The comment period has closed, so the next step is for DHS to decide whether to withdraw the proposal, change it or publish a final rule.
The $100,000 payment is on a different track entirely. Its future depends on the ongoing litigation, despite the administration’s September extension of the underlying proclamation.
For H-1B workers, the practical takeaway is straightforward: Vance’s warnings are not themselves a new visa rule. The September 18 executive order is the actual policy change, and its effect will become clearer as agencies begin applying the new scrutiny.
Sources
- White House: September 18 H-1B Executive Order
- White House: H-1B Program Fact Sheet
- White House: September 18 H-1B Proclamation
- Federal Register: $103,265 H-1B Proposed Rule
- U.S. District Court for the District of Massachusetts: June 8 H-1B Fee Decision
- AILA: First Circuit Denies Stay of $100,000 H-1B Fee Order
- Business Today: Vance’s September 24 H-1B Warning
