Executive order puts employer layoffs into LCA, petition, visa and admission decisions

Signed Sept 18, 2026 · DOL review begins ~Oct 18 · EO, “Enhancing Program Integrity and Interagency Coordination in the Administration of the H-1B Nonimmigrant Visa Program” · Not yet in the Federal Register

The order amends no statute and no regulation. What it does is direct State, DOL and DHS — coordinating with Commerce, Education and SBA — to take into account, at four separate decision points, whether the employer sponsor directly or indirectly conducted layoffs in the prior year or plans layoffs negatively affecting similarly situated U.S. workers. The four points are LCA review, USCIS petition adjudication, consular issuance and admission at the port of entry. That reach is considerably broader than the statutory nondisplacement rule at INA § 212(n)(1)(E), which applies only to H-1B-dependent employers and willful violators and only within 90-day windows.

Section 3(b) gives DOL Wage and Hour thirty days — roughly October 18 — to begin mining previously submitted LCA data for possible INA § 212(n)(2)(G) investigations. Section 3(c) delegates INA § 215(a) authority to State, Commerce, DOL and DHS for implementing rules, so regulatory text should be expected. Ogletree flags consulting, staffing and third-party placement models as the exposed structures.

Read this alongside two other items from the same week. Fragomen reported September 15 that DOL sent a proposed rule to OMB revising minimum PERM recruitment standards and strengthening U.S.-worker layoff rules; contents stay confidential until publication. And on September 8, DOL OIG announced its first enforcement actions from the July 2026 investigation — administrative suspensions of two technology companies' ability to file PERM applications, running until the investigation concludes. Mayer Brown reports dozens of subpoenas issued, open consideration of criminal referrals, and coordination with the White House Fraud Task Force and DOJ Civil Rights. The layoff theme is now running on the nonimmigrant and the PERM track simultaneously.

Executive order, Sept 18·Ogletree, Sept 19·Fragomen on the PERM NPRM at OMB, Sept 15·Mayer Brown on the DOL OIG suspensions, Sept 17

October Visa Bulletin still unpublished; DOS warns EB-1 India and EB-2 may go unavailable before September 30

FY2026 ends Sept 30 · October bulletin not released as of Sept 21 · DOS Visa Bulletin, September 2026, Vol. XI No. 18

The Visa Bulletin landing page shows September 2026 as current and the next bulletin as “Coming Soon.” The October bulletin, which resets FY2027 numbers, is late against normal practice. This is a confirmed absence, not a research gap — there are no October cut-off dates to report.

The September bulletin's narrative sections matter more than usual. Section E warns that high demand and number use chargeable to India in EB-1 “may necessitate making the category unavailable in the coming weeks.” Section F warns that EB-2 demand may require retrogressing the final action date or making the category unavailable before fiscal year end; EB-2 India final action is already “U.” Section C explains the mechanism: issuance rates for certain nationalities have fallen because of Proclamations 10949 and 10998 and the public-benefits processing changes, so DOS advanced dates across categories to absorb unused FY2026 numbers — and says expressly that retrogression may be necessary in coming months. The Worldwide “C” in EB-1 and EB-2 is a temporary absorption, not a structural improvement.

September final action dates: EB-1 Worldwide C, China 01JUL23, India 15OCT22. EB-2 Worldwide C, China 01SEP21, India U. EB-3 Worldwide 01SEP24. Dates for filing: EB-1 Worldwide C, China and India both 01DEC23; EB-2 India 15JAN15.

September 2026 Visa Bulletin·Bulletin landing page

Social media review extends to I, TN and TD on October 1 — O and P remain outside it

Announced Sept 18, 2026 · Effective Oct 1, 2026 · DOS Bureau of Consular Affairs · No Federal Register notice

State will extend mandatory online-presence review to I (foreign media), TN (USMCA professionals) and TD (dependents). Applicants in those classifications are instructed to set the privacy settings on all social media profiles to public. This extends a program already covering A-3/C-3/G-5, F and M, H-1B, H-3 and H-4, J-1 and J-2, K, Q, R and S/T/U. Fragomen notes that State has published no standard for the review and expects derogatory content to trigger extended screening, delay or refusal.

O and P classifications are not on the expanded list and were not on the prior list. That is a clean answer for clients who ask. It is also worth treating as provisional: the program has expanded classification by classification since June 2025 and the H categories were added in December 2025.

Fragomen, Sept 18·AILA Doc. 26091803, Sept 18

Duration-of-status rule postponed nationwide — but postponed, not vacated

Sept 14, 2026 · D. Mass., Saylor, J. · Presidents' Alliance v. DHS, No. 1:26-cv-13799-FDS, Doc. 50 (48 pp.)

One day before the rule at 91 FR 44976 was to take effect, the court postponed its effective date. The distinction that governs client advice: relief issued only under APA § 705. The court denied without prejudice the requests for § 706 vacatur and summary judgment. The rule is suspended, not killed, and the case continues on the merits. The court held § 705 postponement is not party-limited notwithstanding Trump v. CASA, relying on Woonasquatucket River Watershed Council v. USDA (1st Cir. Aug. 7, 2026), and made it nationwide because plaintiffs represent roughly 600 of more than 5,000 institutions.

Likelihood of success was found on arbitrary-and-capricious grounds in at least four respects: perfunctory cost-benefit analysis, failure to consider less burdensome alternatives, failure to respond to significant comments including a predicted 163% surge in extension-of-status filings, and no rational connection between the rule and DHS's stated objectives. The court expressly declined to reach the First Amendment claim. No notice of appeal could be confirmed; a status conference is set for October 2.

Jackson Lewis is the only firm treatment that carves out what the order does not reach. Suspended: fixed I-94 periods, the I-539 extension requirement, the 240-day continued-employment cap, bars on a second program at the same or lower level, graduate transfer restrictions, and the transition provisions including the March 18, 2027 OPT filing deadline. Not touched: SEVP's August 12 and August 24, 2026 broadcast messages narrowing CPT. Practical training must still be required of all students in the program, so optional internships and electives generally fail, and Day 1 CPT as a bridge after OPT or a missed H-1B lottery remains constrained.

Order, Doc. 50·Jackson Lewis, Sept 16·AILA Think Immigration, Sept 17

I-140 RFE trends: full-time recitation, DS-160 reconciliation, and ability-to-pay keyed to the tax deadlines

Sept 15, 2026 · Ryan A. Wilck, Reddy Neumann Brown PC · Observed-behavior report

The most on-point practitioner item of the week, and one of the few reporting what officers are actually doing rather than restating a press release. Three live I-140 RFE clusters:

Full-time status recitation. A returning wave of RFEs demands that experience letters expressly state the employment was full-time. Wilck's position is that 8 CFR 204.5(g)(1) and (l)(3)(ii) impose no such requirement, but advises foreclosing the issue by stating hours per week and mapping duties to the certified ETA-9089, using 8 CFR 103.2(b)(2) secondary evidence where the employer is defunct.

DS-160 reconciliation. RFEs asking petitioners to reconcile employment listed on old DS-160s against the PERM. He calls the premise mistaken — the DS-160 captures only five years in fixed fields — but warns these sit near INA § 212(a)(6)(C)(i) territory and must be answered with an affirmative documented timeline, not a dismissal of the premise.

Ability to pay RFEs keyed to the September 15 and October 15 extended tax deadlines, answerable under Matter of Sonegawa. On the August 5, 2026 Policy Manual change restoring officer discretion to deny without an RFE or NOID, he stresses that 8 CFR 103.2(b)(8) itself did not change — only the internal instruction — and assesses real exposure as low. He attributes unusually quiet I-485 RFE volume to FY2026 number exhaustion rather than policy, and expects pace to recover October 1.

Reddy Neumann Brown, Sept 15

First Circuit vacates DHS third-country removal guidance, trims the sequencing claim

Sept 18, 2026 · 1st Cir. No. 26-1212, Aframe, J. (Montecalvo, Howard) · D.V.D. v. DHS

On a certified class of noncitizens facing removal to third countries under DHS's March and July 2025 policy documents, the panel held the representative plaintiffs lack Article III standing on the sequencing claim and vacated the two declarations requiring DHS to first seek removal to designated or nationality countries. It otherwise affirmed the judgment in full, including the written-notice requirement, the meaningful-opportunity-to-contest requirement, and the APA vacatur of the guidance under 5 U.S.C. § 706(2)(A) and (C). Binds D. Me., D. Mass., D.N.H., D.R.I. and D.P.R. No cert petition confirmed.

Slip opinion

USCIS policy alert on denaturalization referrals

Announced Sept 14, 2026 · Feedback due Oct 14, 2026 · PA-2026-13 · 12 USCIS-PM Part L

Guidance on referring cases for revocation of naturalization under INA § 340, reorganizing and expanding internal instructions on when naturalization may be revoked, how candidate cases are identified, and which categories are prioritized for referral to DOJ. USCIS states the changes do not alter the statutory grounds. The alert PDF itself could not be retrieved; the PA number and the extension of the feedback deadline from September 25 to October 14 are summary-sourced, the latter corroborated by AILA Doc. 26091500.

Context worth noting for the week: three USCIS enforcement press releases landed alongside it — H-2A visa-fraud indictments of five defendants (Sept 18), the arrest of a Houston-area immigration attorney in an alleged fraud scheme (Sept 17), and a non-citizen voting indictment in Kansas (Sept 14).

USCIS Policy Manual updates·USCIS all news

Fourth Circuit breaks with Pickering on vacated convictions

Decided Aug 24, 2026 · Analyzed Sept 15, 2026 · Yanez Piedra v. Blanche, No. 25-1258 (4th Cir.) · Cyrus D. Mehta & Kaitlyn Box

The Fourth Circuit refused to apply Matter of Pickering's “why was it vacated” test to INA § 212(a)(2)(A)(i), holding that a person whose conviction is vacated and charge dismissed is no longer “an alien convicted of” the offense — the phrase goes to present legal status. Mehta and Box emphasize that the court invoked Loper Bright to exercise independent judgment and characterized Pickering as a policy judgment rather than the best reading of the statute, an early illustration of how the end of Chevron may unsettle longstanding BIA doctrine. They caution the holding does not reach every conviction-based provision, and that a pardon, expungement or deferred disposition may not suffice.

Cyrus Mehta, Sept 15

Warrantless immigration arrests restricted in seven California counties; order unsealed this week

Granted Sept 2, 2026 · Unsealed Sept 16, 2026 · C.D. Cal., Frimpong, J. · Summary-sourced

The court held that 8 U.S.C. § 1357(a)(2) requires probable cause both as to unlawful presence and as to likelihood of escape before a warrant can be obtained, and found ample evidence of an ongoing policy and practice of skipping the escape analysis — resting on directives, arrest narratives, agent depositions and body-camera video contradicting written escape narratives. Relief requires a totality-of-the-circumstances escape assessment with contemporaneous documentation of specific, particularized facts; unlawful presence alone is insufficient. Stay pending appeal denied. Covers Los Angeles, Orange, Riverside, San Bernardino, Ventura, Santa Barbara and San Luis Obispo counties. The order itself was not obtained; the reported docket number conflicts with the reported filing date. Verify the caption before citing.

AP and CalMatters coverage of the unsealed order, Sept 16 — primary document not retrieved