On Friday, September 19, 2025, President Trump issued a proclamation, “Restriction on Entry of Certain Nonimmigrant Workers,” putting into effect a ban on H-1B specialty occupation employees from entering the United States as of September 21, 2025, unless their employer had paid a $100,000 fee for the sponsored employee. The announcement was unclear and seemed to imply that the newly imposed fee was applicable to all H-1B visa holders who were outside of the US on the 21st of September. As a result, a frenzy besieged the employment-based immigration community with many H-1B workers receiving “urgent e-mails…with travel advisories to remain in the US and asking those outside the country to return before the 12:01AM deadline on Sunday, September 21st.
Following the nebulous announcement, guidance has been provided by United States Citizenship and Immigration Services (“USCIS”), the White House, and US Customs and Border Protection (“CBP”) to clarify the scope of the original announcement. We have received clarification that current H-1B visa beneficiaries are not required to pay the fee, even those who are outside of the US and that only new H-1B petitions filed on or after September 21, 2025, will be subject to the annual $100,000 fee.
In a statement via X, The White House Press Secretary confirmed that “H-1B visa holders can leave and re-enter the country to the same extent as they normally would; whatever ability they have to do that is not impacted by yesterday’s proclamation.” Leading us to believe that it is not likely that the proclamation will apply to foreign nationals who are currently on H-1B status and filing for H-1B extensions and awaiting USCIS confirmation.
Even with the clarifications that have been issued in the week since the announcement, the information remains inconsistent, making it challenging to grasp the full scope of the new rule. In this post, we will address some of the questions we can answer with the information currently available and identify the aspects that remain unclear.
What We Know About the $100,000 H-1B Fee
With the various clarifications issued in the week following the proclamation, the following has been confirmed:
1. The Fee Is Not Retroactive
The new fee only applies to H-1B petitions filed on or after September 21, 2025. If a petition was filed before September 21, 2025, whether it's already approved or still pending, the fee does not apply, and the beneficiary can continue to travel as usual.
2. H-1B Visa Stamping Will Continue for Pre-September 21 Petitions
US consulates will continue issuing H-1B visa stamps for individuals with petitions filed before the effective date. These applicants do not need to show proof of the $100,000 fee payment when applying for their visa stamp.
3. It’s a One-Time Fee on New H-1B Petitions
Despite mixed messaging from various officials, USCIS clarified in a set of FAQs released September 21 that the $100K fee is a one-time fee applied only to new H-1B petitions filed on or after the effective date. It is not an annual fee, and it does not apply to renewals or extensions of existing H-1B status.
4. Exemptions in the US National Interest Will Be Available
The proclamation includes a provision allowing for National Interest Exemptions. These waivers will be available to qualifying individuals, companies, and industries. However, as of now, no guidance has been released on who will qualify or how to apply. We expect more details in the coming weeks.
What We Don’t Know About the $100,000 H-1B Fee
While the recent USCIS guidance and White House statements have shed some light on the implementation of the new $100K fee on certain H-1B petitions, many important details remain unresolved. Below is a summary of the key open questions:
1. Are Petitions for H-1B Workers Physically in the US Exempt?
The legal authority cited in the Proclamation gives the President power to suspend the entry of foreign nationals. The language in the document states it applies to petitions filed for beneficiaries outside the US as of the effective date of September 21, 2025. This has led to speculation that H-1B petitions filed on behalf of individuals who are already in the US may not be subject to the $100,000 fee. Nonetheless, the USCIS FAQs suggest that the fee applies to all petitions filed after September 21, regardless of the beneficiary’s physical location.
2. What Counts as a “New” Petition?
USCIS has stated that the $100,000 fee applies only to “new” H-1B petitions, not to “renewals.” However, it’s unclear what exactly qualifies as “new” under this policy. For example, will Change of Employer and amendment petitions which employers must file every time there is a substantial change in the H-1B worker’s job duties or work conditions, be classified as exempt “renewals” or fee-subject “new” petitions?
In the last week, it appears that both change of employer and amendments don’t appear to be subject to the fee for cases filed in the US, but it is unclear what would happen when these foreign nationals travel outside the US and have to obtain a new visa stamp.
3. How and When Will the New Fee Be Paid?
There is currently no confirmed procedure for how, where or when the $100,000 fee will be paid. Some guidance suggests the fee will be separate from standard USCIS filing fees. However, no official instructions, payment portals, or forms have been released. Even if an employer is ready to pay the fee now, there is no clear guidance on how to do so.
5. What Are the Criteria for National Interest Exemption Waivers
The Proclamation includes a carve-out for National Interest Exceptions (NIEs) to the fee, but we are yet to have formal guidance as to the criteria that will be used to evaluate the waiver. Will nonprofit organizations, startups, or small businesses be considered for exemptions? Which agency (or agencies) will review and approve these requests?
As we receive guidance on these issues we will certainly update our website and this page.
Broader Policy Directives
Beyond the new fee, the proclamation also sets forth broader goals for reshaping the H-1B program which we will also monitor in the coming months, and which will significantly impact whether an employer would apply for an H-1B for their foreign national:
Prevailing Wage Adjustments
The Secretary of Labor has been directed to revise prevailing wage levels “to levels consistent with the policy goals” of the proclamation. These revisions are expected to raise required wages for H-1B workers, aligning them more closely with higher-paid U.S. counterparts.Lottery Prioritization
The Department of Homeland Security (“DHS”) has been tasked with prioritizing high-skilled, high-paid applicants in the H-1B lottery. This marks a shift away from the purely random lottery system and could alter the chances of selection for many employers and beneficiaries.Compliance Enforcement
In tandem with the proclamation, the Department of Labor (“DOL”) launched Project Firewall , a compliance initiative intended to “protect America’s highly skilled workforce” by intensifying scrutiny of H-1B filings and employer practices.Agency Coordination and Future Recommendations
The proclamation requires multiple agencies—including the Secretaries of State, Labor, and Homeland Security—to provide recommendations within 30 days of the next H-1B lottery (March 2026) on whether to extend or renew the restrictions. It also contemplates issuing further instructions to prevent misuse of other visa categories, such as the B visa, by prospective H-1B workers.
Challenges in Court
It is expected that the proclamation will be challenged in court, particularly over whether the executive branch has authority to impose such a significant fee without congressional action. While courts have historically granted wide latitude to presidential authority in immigration matters, the unusually high $100,000 charge and related policy shifts are likely to be challenged.
Conclusion
In the meantime, employers and H-1B beneficiaries should proceed with caution, as litigation could delay, narrow, or reshape implementation. If you have questions about how these changes may affect your business or immigration status, please contact our office for tailored legal advice.