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What Employers Need to Know: H-1B Scrutiny, the 60-Day Grace Period Proposal and the H-2B Cap
Three developments this fall affect employers that sponsor foreign workers: closer review of H-1B petitions, a proposal to end the 60-day grace period, and an H-2B cap that has already been reached for the first half of fiscal year 2027.
New Trump orders put H-1B employers under greater scrutiny
KEY TAKEAWAY
Expect closer review of your layoff history when you sponsor H-1B workers. The $100,000 payment remains unenforceable for now while litigation continues.
The administration has issued two new actions affecting the H-1B program. An executive order increases coordination among federal agencies and encourages closer scrutiny of H-1B petitions. A presidential proclamation attempts to extend the $100,000 H-1B payment requirement for another year, through September 21, 2027.
More eyes on H-1B cases
The order calls for the Departments of Labor, State and Homeland Security to coordinate with other agencies, including Commerce, Education and the Small Business Administration, when evaluating H-1B petitions, Labor Condition Applications and visas. Adjudications may now look more broadly at the employer, its industry and the labor market.
What employers should know
Agencies have been told to consider whether an employer:
• Laid off similarly situated U.S. workers during the previous year, or
• Plans layoffs that could negatively affect similarly situated U.S. workers
Employers that recently reduced their U.S. workforce while sponsoring H-1B workers should review their layoff history and make sure their H-1B filings are consistent with their hiring practices.
The $100,000 payment
The proclamation says the restriction will remain in place for 12 months beginning September 21, 2026, with national-interest exceptions. However, the administration is currently blocked from enforcing the payment after a federal court ruling, and the First Circuit denied the government’s request to stay that ruling during the appeal. DHS has said it will comply while it considers next steps.
Sponsoring H-1B workers after a reduction in force? Book an H-1B compliance review →
DHS proposal to eliminate the 60-day grace period clears federal review
KEY TAKEAWAY
The 60-day grace period still applies today. If the rule is finalized, workers who lose their jobs may have to leave the U.S. immediately.
The Office of Management and Budget has cleared a DHS proposed rule that would eliminate the discretionary 60-day grace period for nonimmigrant workers whose sponsored employment ends.
Why the grace period matters
Since 2017, the grace period has given workers time to change status, find a new sponsoring employer or prepare to leave the country. It is especially important for families with children, who may need time to make arrangements for school or care.
Without it, a worker could fall out of status immediately after losing a job, with serious consequences, including possible removal proceedings.
Who would be affected
• H-1B and H-1B1 workers
• L-1 workers
• O-1 workers
• TN workers
• E-1, E-2 and E-3 workers
• Their dependents
The bottom line
The text of the rule has not yet been made public. Employers may wish to review their termination policies now, and affected workers should have a contingency plan.
Worried about a layoff or job change? Build a backup plan with us →
USCIS reaches H-2B cap for the first half of FY 2027
KEY TAKEAWAY
September 4, 2026 was the last day to file new cap-subject H-2B petitions with a start date before April 1, 2027. Plan early for the next filing window.
USCIS has received enough petitions to reach the H-2B cap for the first half of fiscal year 2027. September 4, 2026 was the final receipt date for new cap-subject petitions requesting an employment start date before April 1, 2027.
What employers should know
Employers cannot file a new cap-subject H-2B petition now for a start date before April 1, 2027. That does not mean every H-2B petition will be rejected. The outcome depends on the requested start date, whether the petition is subject to the cap and whether an exemption applies.
The bottom line
Employers with ongoing seasonal needs should plan well ahead of future filing windows and determine early whether their workers are subject to the cap or qualify for an exemption.
Rely on seasonal H-2B workers? Plan your next filing with us →
This article is for general information only and is not legal advice. Speak with an immigration attorney about your circumstances.
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