New H-1B Rules: Layoff History Now Affects Visa and Border Reviews

New H-1B Rules Consider Sponsor Layoff History in Visa and Border Reviews

A recent presidential directive is changing how U.S. agencies review H-1B visa petitions and border entries. Starting September 18, 2026, federal agencies must consider a sponsoring company’s history of layoffs when evaluating H-1B applications. This new policy affects visa applications, petition reviews, and even entry into the United States at ports of entry. While this adds a new layer of scrutiny, it’s important to understand that it does not automatically lead to denials for workers whose employers have laid off staff.

The directive specifically instructs the Secretaries of State, Labor, and Homeland Security to examine whether a sponsor has recently laid off U.S. workers in similar roles or plans to do so in the future. This review is part of a broader effort to ensure the H-1B program benefits both foreign workers and the U.S. workforce. The focus is on the employer’s actions and workforce management, rather than solely on the individual worker’s qualifications.

How Layoff Histories Impact Visa and Border Decisions

Consular officers and Customs and Border Protection (CBP) officers now have the authority to consider an employer’s layoff record when processing H-1B related matters. This means that when a worker applies for a visa stamp abroad or seeks admission into the U.S., the officer can take into account the sponsoring company’s workforce history. This review extends to various stages, including visa applications, petitions, and admission decisions at the border. It also covers pre-flight inspections and pre-clearance processes.

It is crucial to note that this directive does not create an automatic denial system. An employer’s layoff history is an additional factor for consideration, not an automatic disqualifier for an individual H-1B worker. The individual’s own petition history and current employment status remain significant parts of the assessment.

Understanding Withdrawn Petitions and Job Endings

When an employer terminates an H-1B worker’s employment, they are expected to formally notify U.S. Citizenship and Immigration Services (USCIS) to withdraw the worker’s petition. This action creates a record that the previous employment has ended. A withdrawn petition can appear in a worker’s H-1B history, indicating that their prior job is no longer active.

This is separate from the new directive’s focus on the employer’s overall layoff history. However, a withdrawn petition can prompt questions during reviews about the end of previous employment, the worker’s current job, and the associated wages. Officers might inquire about termination dates, the status of any new petitions, and the employer’s recent layoffs involving comparable U.S. workers. The approval of a new or continuing H-1B position is assessed independently of the withdrawn petition.

The 60-Day Grace Period and Re-entry Requirements

Following a job termination, H-1B workers may have a grace period to remain in the U.S., typically 60 days, or until their I-94 (Arrival/Departure Record) expires, whichever comes first. While this grace period allows time to find new employment or make arrangements, it does not, by itself, establish current employment or provide a basis for re-entry into the U.S. A proposed Department of Homeland Security rule has aimed to change this grace period, but the 60-day period is currently described as the operative rule.

To successfully re-enter the United States after a layoff, an H-1B worker needs more than just a visa stamp. They must demonstrate a valid basis for H-1B admission, which includes having a current, approved job offer.

Essential Documentation for Re-entry

When seeking to re-enter the U.S. after a layoff, an H-1B worker should be prepared with several key documents. These include a valid H-1B visa stamp in their passport, a valid passport itself, and the I-797 approval notice for their current or new H-1B petition. Most importantly, they need proof of ongoing qualifying employment.

The core issue for re-entry is whether the individual will be returning to an approved H-1B job, either through a new petition or a continuation of their previous employment under specific circumstances. Traveling without a new, valid H-1B basis tied to current employment carries a significant risk of being denied admission. A visa stamp alone does not confirm that an active job is still linked to an approved petition. Therefore, it is essential for the worker to be able to show a clear connection to the employer offering the position through an approved petition.

Employer and Worker Responsibilities

Employers play a critical role in this process by clearly documenting any employment termination and notifying USCIS about the petition withdrawal. They must also address any applicable transportation obligations for the departing worker. On the worker’s side, it is vital to confirm the status of any new H-1B petition and the employment it authorizes before planning any international travel. Carrying evidence of an approved current H-1B petition that matches the employer offering the position is crucial for officers to assess the basis for admission.

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