H-1B UPDATES: THE $100,000 FEE and PROJECT FIREWALL

•  Global Nurse Force v. Trump, filed in the Northern District of California on October 3, 2025, was the first suit against the fee and was brought by healthcare staffing and other employers; the lead plaintiff, a nurse-staffing company placing nurses at hospitals nationwide, told the court the fee would halt its recruitment and deepen hospital staffing shortages. 
• The U.S. Chamber of Commerce's challenge is before the D.C. Circuit after a district court upheld the fee in December 2025. The government may also seek emergency relief from the Supreme Court. The fee has changed status several times within a year, and it can change again on short notice.

Under the original proclamation and its implementing guidance, the payment requirement principally targeted certain new H-1B petitions involving beneficiaries outside the United States.

• Existing H-1B visa holders, previously approved petitions, and qualifying changes of status within the United States were generally outside its scope. The treatment of individual cases, particularly those involving consular processing or changes in a beneficiary's circumstances, requires careful review.
• The proclamation also provides for discretionary national-interest exceptions. However, the availability and application of those exceptions remain subject to government implementation and ongoing litigation.
• Employers contemplating international recruitment should evaluate potential exposure without assuming that the fee is currently payable or that the legal dispute has been resolved.

Until now DOL's reach was narrow in practice. In Greater Missouri Medical Pro-Care Providers (8th Cir. 2013), the court held that a complaint-driven investigation could not go beyond the four corners of the complaint. A Secretary-certified investigation has no such boundary.

What DOL Looks For

The compliance failures most often found in LCA investigations are:

• Notice posting: Hard copies at third-party sites, or postings on a host employer's intranet accessible to affected workers, are required. Reliance on the sponsoring employer's own website is not sufficient.
• Prevailing wage leveling: DOL may reclassify jobs upward if actual duties and experience exceed the wage level filed, creating substantial back-pay liability.
• U.S. worker displacement: Layoffs combined with H-1B hiring draw investigation.
• Handling applicant inquiries: Employers increasingly receive emails from U.S. workers citing jobs listed in LCAs. Accept the resume and confirm that the worker will be considered for future opportunities. Ignoring inquiries can strengthen claims that U.S. workers were denied fair notice.
• Wage theft: Underpayment or withholding of wages owed to H-1B workers.
• Misrepresented worksites or job duties: Discrepancies between LCAs and actual assignments.

Violations are assessed per worker, per violation, and the amounts are adjusted annually for inflation:

• Up to $18,111 for non-willful violations, such as improper postings or misclassifications.
• Up to $307,370 for willful or repeat violations.
• Back wages may be owed to both H-1B workers, for underpayment, and U.S. workers, for displacement.
• Employers risk temporary debarment from the H-1B program.

With Project Firewall, an investigation can start without notice and cover the entire H-1B program. The employers in the best position when it does are the ones that have already done the following:

1. Commission a privileged LCA compliance audit. Review postings, wages, SOC codes, and attestations under attorney-client privilege, so that problems are found and fixed before DOL finds them.
2. Document postings correctly. Use hard copies or host-site intranets, and keep dated screenshots, notices, or intranet records that prove compliance.
3. Anticipate prevailing wage challenges. Confirm that duties and credentials align with the wage level filed, and prepare the defense before DOL attempts to re-level a position.
4. Set a protocol for U.S. worker inquiries. Train HR and legal staff to accept resumes and note future consideration, using compliant acknowledgment language.
5. Review recruitment and hiring practices. Confirm that U.S. workers are not disadvantaged, particularly where layoffs or job postings overlap with H-1B hiring.
6. Prepare for interagency inquiries. Audits may involve DOL, DOJ, EEOC, USCIS, or OIG; responses must be consistent across agencies, because discrepancies between filings are shared and can trigger penalties.
7. Review vendor and client contracts. Confirm that job descriptions and locations match the certified LCAs.
8. Evaluate exposure to the $100,000 fee. The fee is blocked today; if it returns, DHS may grant national-interest exceptions, but the criteria remain unclear.

Kennedy Law conducts the privileged audit, prepares the wage and displacement defenses, drafts the acknowledgment language, and coordinates responses across agencies. Attorney Kennedy is responsible for the strategy and the details of each matter. 

On September 18, 2026, the administration issued a separate executive order expanding interagency coordination and directing closer examination of employers' hiring and layoff practices.

The order directs federal agencies to consider whether an H-1B sponsoring employer has laid off similarly situated U.S. workers during the preceding year or plans future layoffs affecting those workers. It also directs the Department of Labor to review previously submitted LCAs for potential enforcement action.

This development is particularly relevant to employers undergoing restructuring, reducing their workforces, or using third-party staffing arrangements. The executive order does not independently establish a universal prohibition against sponsoring H-1B workers after layoffs. However, employers should anticipate closer examination of their employment practices and the accuracy of their immigration filings.