H-1B Changes Raise New Questions for Employers

The administration continues to advance changes to employment-based immigration that could increase costs and compliance requirements for employers that rely on foreign talent.

A new White House proclamation, effective Sept. 21, extends for another year restrictions requiring a $100,000 payment for certain H-1B workers outside the United States. The payment requirement stemming from the prior proclamation remains the subject of ongoing litigation. A companion executive order also directs federal agencies to coordinate more closely when administering the H-1B program and to consider whether a sponsoring employer conducted layoffs during the previous year, or plans future layoffs, that affect similarly situated U.S. workers. Additional agency guidance and implementation measures are expected.

Separately, the Department of Homeland Security (DHS) had proposed an additional $103,265 fee for each cap-subject H-1B petition, on top of existing filing costs. SHRM submitted comments raising concerns about the proposal, emphasizing that employers use the H-1B program alongside investments in recruiting, training and developing U.S. workers to address persistent skills gaps. Drawing on SHRM workforce data, the comment also highlighted recruiting challenges, demand for H-1B talent in difficult-to-fill mid-level positions and the potential disproportionate impact of the fee on small and midsize employers.

SHRM supports preserving the integrity of the H-1B program and protecting U.S. workers while maintaining a system that allows employers to access specialized talent when needed. SHRM urged DHS to consider more targeted approaches to recovering immigration-system costs that do not unnecessarily limit employers' ability to fill critical workforce needs.

DHS is also proposing to eliminate the discretionary 60-day grace period currently available to workers in several employment-based nonimmigrant categories after employment ends. Under the proposal, affected workers generally would be considered out of status beginning the day after employment ends unless otherwise authorized to remain in the United States. Comments are due Nov. 10.

Taken together, these actions signal continued federal scrutiny of employment-based immigration and could affect both the cost and flexibility of accessing foreign talent. SHRM will continue engaging on proposed regulations while monitoring litigation, implementation and additional agency guidance.