US to Scrutinize H-1B Petitions From Firms With Recent Layoffs
A new executive order directs immigration and labor agencies to consider an employer's layoffs within the prior year when reviewing H-1B filings, increasing scrutiny at multiple stages of the process.
A September 18 executive order directs the Departments of Homeland Security, Labor, and State to consider whether a sponsoring employer has conducted layoffs in the prior year—or plans future ones—affecting "similarly situated" U.S. workers. This directive significantly heightens scrutiny for companies that sponsor H-1B workers while also conducting reductions in force. Unlike existing nondisplacement rules that are limited to certain employers and a 90-day window, this order appears to apply to all H-1B employers and looks back a full year. The increased review can occur at multiple stages, including Labor Condition Application certification, USCIS petition adjudication, and consular processing. The order also directs the Labor Department to review previously submitted applications for potential new enforcement actions. The practical scope of the order remains uncertain pending forthcoming rules and operational guidance from the agencies. Sponsoring employers with recent or planned layoffs should prepare to provide detailed justifications for their H-1B petitions.