H-1B Proclamation Analysis: Understanding the $100,000 Fee and Entry Restrictions

What We Know So Far (This info will be continually updated with new developments)

Updates October 20th, 2025 from the USCIS

https://www.uscis.gov/working-in-the-united-states/h-1b-specialty-occupations
UPDATE: USCIS Issues More Detailed Guidance on $100,000 H-1B Payment Requirement

Following the September 19, 2025 Presidential Proclamation imposing a $100,000 fee on certain H-1B petitions, USCIS has now released implementation guidance. While some questions are answered, significant ambiguities remain. Here's a comprehensive breakdown of what we know and what remains unclear.

Background: The Proclamation's Scope

USCIS Quote: "On September 19, 2025, the President issued a Proclamation, Restriction on Entry of Certain Nonimmigrant Workers, an important initial step to reform the H-1B nonimmigrant visa program. Under the Proclamation, certain H-1B petitions filed at or after 12:01 a.m. eastern daylight time on September 21, 2025 must be accompanied by an additional $100,000 payment as a condition of eligibility."

What This Means: The effective date is September 21, 2025, at 12:01 a.m. EDT. Any petition filed even one minute after this deadline falls under the new requirement. USCIS characterizes this as a "reform" measure, though the practical effect is a dramatic restriction on H-1B accessibility.

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Who Must Pay: The Core Rule

USCIS Quote: "The Proclamation applies to new H-1B petitions filed at or after 12:01 a.m. eastern daylight time on September 21, 2025, on behalf of beneficiaries who are outside the United States and do not have a valid H-1B visa."

What This Means: Two conditions must both be met for the fee to apply:

1. The beneficiary is physically outside the United States, AND
2. The beneficiary does not have a valid H-1B visa (But see below the The Consular/Port of Entry Notification Trap and The Change of Status Failure Scenario)

Critical Analysis: This creates an immediate distinction between workers abroad and those already in the US. If your beneficiary has a valid H-1B visa (even if working for a different employer), the $100,000 payment does not apply to a new petition.

Practical Tip for Workers: If you currently hold a valid H-1B visa, you're exempt from this payment for new petitions, making you significantly more attractive to prospective employers.

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The Consular/Port of Entry Notification Trap

USCIS Quote: "The Proclamation also applies if a petition filed at or after 12:01 a.m. eastern daylight time on September 21, 2025, requests consular notification, port of entry notification, or pre-flight inspection for an alien in the United States."

What This Means: Even if the beneficiary is physically in the United States, checking the box for consular processing, port of entry notification, or pre-flight inspection triggers the $100,000 payment requirement.

Critical Analysis: This is a trap for the unwary. Many of us  check the consular notification for various reasons. Under this guidance, that practice now carries a $100,000 price tag.

Gap Alert: USCIS does not clarify what happens if you initially file without these notifications and later request them through an amendment. Would that trigger the payment retroactively? This remains unclear.

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The Change of Status Failure Scenario

USCIS Quote: "In addition, if a petition filed at or after 12:01 a.m. eastern daylight time on September 21, 2025, requests a change of status or amendment or extension of stay and USCIS determines that the alien is ineligible for a change of status or an amendment or extension of stay (e.g., is not in a valid nonimmigrant visa status or if the alien departs the United States prior to adjudication of a change of status request), the Proclamation will apply and the payment must be paid according to the instructions provided by USCIS."

What This Means: You can file for change of status without the $100,000 payment initially, but if USCIS determines the beneficiary is ineligible (due to status violations or departure from the US), you'll be required to pay the $100,000 retroactively.

Critical Analysis: This creates extraordinary risk and uncertainty. Status determinations are often complex and sometimes arbitrary. You could file in good faith, only to face a surprise $100,000 bill months later when USCIS finds a status violation you didn't anticipate.

Gap Alert: What happens if you can't or won't pay the $100,000 after USCIS determines ineligibility? Does the petition simply get denied? Can you withdraw it? USCIS provides no guidance on this scenario.

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What's Protected: Existing Visas and Pending Petitions

USCIS Quote: "The Proclamation does not apply to any previously issued and currently valid H-1B visas, or any petitions submitted prior to 12:01 a.m. eastern daylight time on September 21, 2025. In addition, the Proclamation does not prevent any holder of a current H-1B visa, or any alien beneficiary following petition approval, from traveling in and out of the United States."

What This Means: Three important protections:

1. Valid H-1B visas issued before September 21, 2025 remain valid
2. Petitions filed before the deadline are unaffected
3. Travel rights are preserved for current H-1B visa holders

Critical Analysis: This grandfather clause provides significant relief. Workers with valid H-1B visas can continue using them, and approved petitions retain their validity regardless of when the visa is actually issued.

Practical Tip for Workers Abroad: If you have a valid H-1B visa, guard it carefully. Its value just increased exponentially. Even if you're between jobs, maintaining that visa stamp's validity is worth significant effort.

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The Domestic Worker Protection

USCIS Quote: "The Proclamation also does not apply to a petition filed at or after 12:01 a.m. eastern daylight time on September 21, 2025, that is requesting an amendment, change of status, or extension of stay for an alien inside the United States where the alien is granted such amendment, change, or extension. Further, an alien beneficiary of such petition will not be considered to be subject to the payment if he or she subsequently departs the United States and applies for a visa based on the approved petition and/or seeks to reenter the United States on a current H-1B visa."

What This Means: If your beneficiary is in the US and successfully obtains an amendment, change of status, or extension, the $100,000 payment never applies—even for future travel and visa applications based on that petition.

Critical Analysis: This is the most significant safe harbor in the entire guidance. Once you successfully process a petition for someone in the US, that petition is permanently exempt from the $100,000 requirement, even for subsequent consular processing.

Practical Tip for Employers: Whenever possible, bring workers to the US in other valid status categories first (F-1, L-1, O-1, B-1, etc.), then file for H-1B change of status. The value of this strategy just increased by $100,000.

Practical Tip for Workers: If you're considering graduate school or other opportunities that would bring you to the US in non-H-1B status (such as F-1, L-1, O-1, B-1, etc.), the calculus has changed dramatically. Getting to the US first, in almost any valid status, could save your future employer $100,000.

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How to Pay: The Mechanics

USCIS Quote: "Petitioners should submit the required $100,000 payment using pay.gov, following the instructions on pay.gov at the following link: https://www.pay.gov/public/form/start/1772005176."

What This Means: Payment must be made through the federal pay.gov system, not through USCIS's normal filing fee payment channels.

Critical Analysis: This separate payment system suggests the government views this differently from normal filing fees—more akin to a penalty or special assessment than a routine processing charge.

Practical Tip: Test the pay.gov system now, before you need it urgently. Government payment systems can be finicky, and you don't want technical difficulties preventing a time-sensitive filing.

Gap Alert: What payment methods does pay.gov accept? Are there transaction limits? Can the same credit card be used for multiple $100,000 payments? These practical questions remain unanswered.

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Timing: Pay First, File Second

USCIS Quote: "Payment must be made prior to filing a petition with USCIS, as petitioners must submit proof that the payment has been scheduled from pay.gov or evidence of an exception from the $100,000 payment from the Secretary of Homeland Security at the time of filing the H-1B petition. Petitions subject to the $100,000 payment that are filed without a copy of the proof of the payment from pay.gov or evidence of an exception from the Secretary of Homeland Security will be denied."

What This Means: You cannot file the petition and pay later. Proof of payment (or proof of exception) must accompany the initial filing. Failure to include this proof results in automatic denial.

Critical Analysis: Note the phrase "payment has been scheduled." This suggests you don't need proof that funds have fully cleared—just that payment has been initiated through pay.gov. However, this distinction needs clarification.

Practical Tip for Employers: Build extra time into your H-1B filing timeline. You now need to:

1. Obtain employer approval for the $100,000 expenditure
2. Process payment through pay.gov
3. Obtain proof of payment
4. Attach proof to petition
5. File petition

This entire sequence must happen before your filing deadline.

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The Exception: An Extraordinarily High Bar

USCIS Quote: "Exceptions to the $100,000 payment are granted by the Secretary of Homeland Security in the extraordinarily rare circumstance where the Secretary has determined that a particular alien worker's presence in the United States as an H-1B worker is in the national interest, that no American worker is available to fill the role, that the alien worker does not pose a threat to the security or welfare of the United States, and that requiring the petitioning employer to make the payment on the alien's behalf would significantly undermine the interests of the United States."

What This Means: Four cumulative requirements must all be met:

1. The specific worker's presence is in the national interest
2. No American worker is available for the role
3. The worker poses no security threat
4. Requiring payment would "significantly undermine" US interests

Critical Analysis: USCIS describes this as "extraordinarily rare," signaling that exceptions will be granted sparingly. The language mirrors National Interest Waiver standards but is even more restrictive—you must prove not just that the work is in the national interest, but that requiring this particular employer to pay $100,000 would harm US interests.

The fourth criterion is particularly challenging. How do you prove that requiring payment would "significantly undermine" US interests? This seems to contemplate scenarios like:

• Critical national security projects where delay would be harmful
• Nonprofit or government-funded research where $100,000 is unavailable
• Emergency healthcare or disaster response situations

Practical Tip for Large Corporations: Don't expect exceptions. If your company has significant resources, USCIS will likely find that you can afford the payment without undermining US interests.

Practical Tip for Nonprofits, Universities, and Startups: You may have a stronger exception argument, particularly if you can demonstrate:

• Work on federally-funded projects
• Critical research with national security implications
• Inability to continue the project without this specific worker
• Genuine unavailability of US workers (not just preference for the foreign worker)

Practical Tip for All Applicants: Document everything exhaustively. If you're seeking an exception, assume you're making a case comparable to a National Interest Waiver, but with the added burden of proving the payment requirement itself causes harm.

Gap Alert: What's the timeline for exception decisions? Is there an appeal process if denied? Can you pay the $100,000 and file after an exception denial, or does the denial preclude filing altogether? None of this is addressed.

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How to Request an Exception

USCIS Quote: "Petitioning employers who believe their alien worker satisfies this high threshold may seek an exception by sending their request and all supporting evidence to H1BExceptions@hq.dhs.gov."

What This Means: Exception requests go to a dedicated email address at DHS headquarters, not through normal USCIS channels.

Critical Analysis: This centralized process suggests exceptions will be reviewed at the highest levels, not by standard adjudicators. This could mean more consistency but also slower processing and more conservative decision-making.

Practical Tip: Treat exception requests like high-stakes litigation briefs:

• Include a detailed legal memorandum
• Attach extensive supporting documentation
• Cite relevant precedents and policy statements
• Obtain letters from recognized experts, government officials, or industry leaders
• Demonstrate both the national interest and the financial hardship

Gap Alert: USCIS provides no information about:

• Response timeframes
• Whether you can file the petition while awaiting exception decision
• Format requirements for the request
• Whether there's a fee for exception requests
• Whether Premium Processing is available for exceptions
• What happens if your exception is approved after your intended start date

As a practical matter, the lack of guidance on processing times is particularly troubling. If you're facing an October 1 start date and submit an exception request in August, will you receive a decision in time? The uncertainty may force many employers to simply pay the $100,000 rather than risk missing critical deadlines.

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What's Still Unclear: Critical Gaps

Be mindful that this guidance, while detailed in some respects, leaves major questions unanswered:

For Premium Processing: Can you use Premium Processing for petitions subject to the $100,000 payment? For exception requests?

For Cap-Subject Petitions: How does this interact with the H-1B lottery? Do you pay $100,000 before or after winning the lottery? What if you're not selected?

For Refunds: If USCIS denies your petition for reasons unrelated to the payment, is the $100,000 refunded?

For Amendments: If you file without consular notification (no payment), then later amend to add it, must you pay then?

For Multiple Petitions: Can one payment cover multiple beneficiaries or multiple petitions for the same beneficiary?

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Update, October 3, 2025, Lawsuit filed in California

The $100,000 H-1B Fee: Understanding the Lawsuit, Analyzing the Impact, and Planning Your Strategy

A comprehensive analysis of the most dramatic change to the H-1B program in decades

The First Lawsuit (California)

A coalition of affected parties has sued the Trump administration. The lawsuit, filed in the U.S. District Court for the Northern District of California, argues that the fee is unconstitutional, procedurally defective, and will cause devastating and irreparable harm to American competitiveness, healthcare access, educational institutions, and religious communities.

Let us examine this proclamation, the legal challenge, the sector-specific impacts, and strategic considerations for employers and H-1B holders navigating this unprecedented situation.

Understanding the Proclamation

The Fee Structure

The proclamation imposes a one-time $100,000 fee on each new H-1B petition filed on or after September 21, 2025, 12:01 AM Eastern. This is in addition to existing USCIS filing fees, which typically total $2,000-$5,000 depending on employer size. For most employers, this represents an increase from approximately $4,000 to $104,000 per H-1B hire.

According to government guidance issued over the September 21st weekend:

• The fee applies to new H-1B petitions filed after the effective date for beneficiaries outside the United States
• It does not apply to petitions filed before September 21st
• It does not apply to current H-1B holders with validly issued visas
• It is a one-time fee, not an annual payment (contrary to Commerce Secretary Howard Lutnick's initial statement that it would be "$100,000 per year")
• It does not change fees for renewals (though "renewals" is not defined; does this mean extensions? Changes of employer?)

The fee is scheduled to expire in 12 months, September 21, 2026, unless extended. This creates profound uncertainty for employers planning H-1B lottery participation in March 2026 for October 2026 start dates.

The Stated Rationale

The administration claims the H-1B program has been "abused" by employers who use it to replace American workers with cheaper foreign labor. The White House fact sheet accompanying the proclamation cites unemployment rates among recent computer science graduates (6.1%) and computer engineering graduates (7.5%) as evidence that American STEM workers are being displaced.

The proclamation asserts that "[t]he H-1B program is creating disincentives for future American workers to choose STEM careers, which threatens our national security." By imposing a $100,000 fee, the administration claims it will deter "companies from spamming the system and driving down American wages."

The Legal Authority Cited

The proclamation relies on Section 212(f) of the Immigration and Nationality Act, which provides:

"Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate."

This is the same provision the administration has used for travel bans and other entry restrictions. The Supreme Court's 2018 decision in Trump v. Hawaii upheld the president's authority under Section 212(f) to suspend entry, finding he has "broad authority" to protect national interests.

However, and this is critical, Section 212(f) authorizes entry restrictions, not fee impositions. The Trump v. Hawaii court addressed whether the president could ban entry of certain nationals; it did not address whether he could levy a $100,000 tax on entry.

The Lawsuit: Legal Arguments and Plaintiffs

According to news reports, the lawsuit was filed by a diverse coalition including:

• Labor unions (American Association of University Professors, UAW International)
• Healthcare organizations (Global Nurse Force, a California-based organization helping hospitals fill nursing vacancies)
• Educational institutions (Global Village Academy Collaborative, providing services to charter schools in Colorado)
• Religious organizations (Society of the Divine Word's Chicago Province, which sponsors clergy with specialized language skills)

This coalition is represented by the Justice Action Center, Democracy Forward, and the South Asian American Justice Collaborative; organizations with a successful track record of challenging the Trump administration's immigration policies.

Constitutional and Statutory Arguments

While the complaint has not yet been made publicly available, immigration attorneys analyzing the proclamation have identified several strong legal arguments that the plaintiffs are likely advancing:

1. Violation of Separation of Powers

The Constitution grants Congress, not the president, the power to "lay and collect taxes" (Article I, Section 8). Immigration fees have historically been classified as regulatory fees, designed to cover the government's administrative costs, rather than revenue-generating taxes.

The $100,000 fee bears no relationship to USCIS's adjudication costs. A typical H-1B petition review requires perhaps 2-4 hours of officer time, worth perhaps $200-$400 in loaded labor costs. The $100,000 fee is thus pure revenue generation, transforming what should be a cost-recovery regulatory fee into a tax that only Congress can impose.

The plaintiffs likely argue that even if Section 212(f) authorizes entry restrictions, it does not authorize the executive branch to create new taxes disguised as fees.

2. Misuse of Section 212(f)

Section 212(f) gives the president authority to "suspend the entry" of aliens or "impose on the entry of aliens any restrictions he may deem to be appropriate" when their entry would be "detrimental to the interests of the United States."

The critical question: Does imposing a $100,000 fee constitute a "restriction" on entry, or does it constitute fee-setting authority that Congress has not delegated to the president?

The Supreme Court in Trump v. Hawaii upheld an entry ban, a complete prohibition. It did not address fee imposition. There is a meaningful distinction between saying "you cannot enter" (a restriction) and saying "you may enter if you pay $100,000" (a conditional tax).

Furthermore, the INA contains a comprehensive statutory scheme governing immigration fees, codified at 8 U.S.C. § 1356. Congress has specified exactly which fees USCIS may charge and for what purposes. The president's use of Section 212(f) to create an entirely new fee structure arguably circumvents this congressionally established framework.

3. Violation of the Administrative Procedure Act

The Administrative Procedure Act (APA) requires federal agencies to follow specific procedures before implementing major policy changes:

• Notice and comment: Agencies must publish proposed rules in the Federal Register and provide the public an opportunity to submit comments before finalizing rules
• Reasoned decision-making: Agencies must consider relevant factors, examine evidence, and explain their reasoning
• Economic impact analysis: For "major rules" with significant economic impact, agencies must conduct cost-benefit analyses

The proclamation violated all three requirements. It was issued without prior notice, without opportunity for public comment, without economic impact analysis, and without reasoned consideration of alternatives. This procedural failure alone provides grounds for invalidation.

Courts have repeatedly struck down Trump administration immigration policies on APA grounds. In Regents of the University of California v. DHS, the Supreme Court invalidated the DACA rescission because DHS failed to consider the reliance interests of DACA recipients. In East Bay Sanctuary Covenant v. Trump, courts blocked the asylum transit ban for failure to follow notice-and-comment procedures.

4. Arbitrary and Capricious Decision-Making

Even if the president has authority to impose fees and even if he follows proper procedures, agency actions must not be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" (5 U.S.C. § 706).

The $100,000 figure appears to have been selected without any analytical basis. Commerce Secretary Lutnick stated the administration arrived at $100,000 "after talking with companies, "not after rigorous economic analysis. There is no explanation for why $100,000 specifically, rather than $50,000 or $200,000, serves the stated goal of deterring abuse.

Moreover, the fee is poorly targeted if the goal is truly to prevent wage depression. It applies equally to:

• Medical residents earning $55,000 annually
• Professors at nonprofit universities
• Clergy serving immigrant communities
• Engineers at Fortune 500 companies earning $200,000+

A fee that makes it economically irrational to hire physicians treating underserved communities cannot rationally be said to "protect American workers" in the healthcare sector, where severe shortages exist.

Sector-Specific Impacts: Who Gets Hurt

Healthcare: A Crisis Compounded

The healthcare sector faces perhaps the most devastating impact. International medical graduates (IMGs) play an indispensable role in American healthcare:

• 23% of licensed U.S. physicians are IMGs
• 64% of IMGs practice in Medically Underserved Areas (MUAs) or Health Professional Shortage Areas (HPSAs)
• 10,000 of 43,000 medical residency positions are filled by H-1B holders
• 86,000-physician shortage projected by 2036, according to the Association of American Medical Colleges

The economics are stark: Hospitals cannot pay $100,000 for medical residents earning $55,000 annually. The return on investment does not exist during training years. Even for attending physicians, rural hospitals and community health centers, which operate on razor-thin margins, cannot absorb this cost.

The irony is profound: This policy will most severely impact the red states and rural communities that voted for Trump. These are precisely the areas where American medical graduates choose not to practice, creating the reliance on IMGs in the first place.

Recognizing the disaster unfolding, the American Medical Association and 54 other physician organizations sent a letter to DHS Secretary Kristi Noem urging exemption of all physicians from the fee. The White House has suggested physicians "may" receive exemptions under the national interest exception, but no formal guidance has been issued. This uncertainty itself creates planning paralysis for hospitals, making it difficult for them to make hiring decisions now for positions starting in July 2026.

Technology and Innovation: The Brain Drain

The technology sector has long been the primary user of H-1B visas, with approximately 65% of all H-1B approvals going to computer-related occupations. Major tech companies are simultaneously the most capable of absorbing the cost and the most visible targets of criticism about H-1B usage.

Impact on Large Tech Companies: Amazon alone was approved for over 10,000 H-1B visas in FY 2025. At $100,000 per new hire, this could result in annual visa costs exceeding $1 billion. Other major sponsors include:

• Microsoft: 4,725 approvals
• Meta: 4,844 approvals
• Google: 5,364 approvals
• Apple: 3,873 approvals

While these companies can potentially absorb the costs, the fee fundamentally changes hiring calculations. CFOs will now scrutinize every H-1B hire with unprecedented intensity. The practical result: fewer entry-level and mid-level H-1B hires, with the visa reserved for truly exceptional senior talent.

Impact on Startups and Mid-Sized Companies: The fee is truly prohibitive for startups. A Series A startup with $5 million in funding cannot justify spending $100,000 on a visa, that's 2% of their entire runway for a single hire. Venture capital firms warn this will push innovation overseas, particularly in artificial intelligence development, where America competes directly with China.

Consider the practical impact: A promising startup identifies a world-class machine learning expert who is currently completing a PhD abroad. Previously, the cost to sponsor this individual was ~$4,000. Now it's $104,000. The startup's options are to:

1. Pay the fee (likely impossible given budget constraints)
2. Have the individual join as a contractor working remotely (losing the collaborative benefits of in-person work)
3. Open a foreign subsidiary and have the individual work there (offshoring the innovation)
4. Pass on the hire entirely (losing competitive advantage)

None of these outcomes serves American interests.

Impact on Indian IT Services Companies: Indian IT services firms, such as Tata Consultancy Services, Infosys, and Wipro, have historically been significant users of the H-1B program, often criticized for employing it to place workers at client sites at below-market wages. These companies will be disproportionately impacted.

Their business model, which involves training workers in India, bringing them to the U.S. for 2-3 year rotations, and then rotating them back, becomes economically unviable at $100,000 per visa. These companies will likely:

• Dramatically reduce H-1B applications
• Shift to remote work arrangements where possible
• Focus H-1B petitions on senior architects and consultants where the ROI justifies the cost
• Potentially increase U.S. hiring to avoid the visa requirements entirely

Whether this outcome is good or bad depends on one's perspective on the H-1B program generally.

Education: Universities and Schools

Universities rely on H-1B visas to hire faculty with unique expertise, particularly in languages, cultural studies, and specialized technical fields where qualified American candidates may not be available. The impact extends beyond elite research universities to:

Community colleges and regional universities that cannot compete on salary with major research institutions rely on H-1B visas to fill faculty positions in STEM fields, language instruction, and specialized programs.

K-12 schools (such as Global Village Academy Collaborative, one of the plaintiffs) utilize H-1B visas to hire teachers with specialized skills, including Mandarin teachers, advanced mathematics instructors, or specialists in emerging technologies.

Research institutions depend on H-1B scientists, postdoctoral researchers, and lab managers to maintain cutting-edge research programs. Many research grants budget for personnel costs but lack the flexibility to absorb an additional $100,000 fee.

The fee threatens educational quality and research competitiveness. Universities operating under enrollment pressures and budget constraints must now choose: pay $100,000 for a single specialized hire, or leave the position unfilled?

Nonprofits and Religious Organizations

This sector receives perhaps the least attention, yet it faces acute impacts. Religious organizations use H-1B visas to bring clergy with specialized linguistic and cultural competencies to serve immigrant communities. Consider:

The Society of the Divine Word's Chicago Province (a plaintiff in the lawsuit) sponsors priests and brothers from around the world to serve multilingual Catholic parishes. These priests often speak indigenous languages that enable them to minister to refugees and immigrants in their native tongues, a capability almost impossible to find among U.S. citizens.

The economics are impossible: Religious organizations operate on donations from their congregations. They cannot pay $100,000 to sponsor a priest who will earn perhaps $30,000 annually while serving an immigrant community in rural Illinois.

Similarly, nonprofit organizations providing services to underserved communities, homeless shelters, community health centers, refugee resettlement agencies, often employ H-1B professionals with specialized cultural and linguistic expertise. These organizations operate on government grants and charitable donations, with zero ability to absorb a $100,000 fee.

Strategic Planning for FY 2027 Lottery (March 2026):

The proclamation expires September 21, 2026. The FY 2027 H-1B lottery typically occurs in March 2026, with October 1, 2026, start dates. This creates massive uncertainty:

• Will the proclamation be extended?
• Will it expire, and will lottery petitions be fee-free?
• Will the lawsuit be resolved by then?

Our recommendation: Proceed with lottery planning as if the fee will apply, but advocate loudly for its repeal or exemption for your industry. If you're in healthcare, education, or nonprofit sectors, petition DHS for national interest exemptions.

National Interest Exemptions: Will They Help?

The proclamation grants DHS discretionary authority to exempt individuals, employers, or entire industries "if the Secretary of Homeland Security determines, in the Secretary's discretion, that the hiring of such aliens to be employed as H-1B specialty occupation workers is in the national interest and does not pose a threat to the security or welfare of the United States."

This "national interest exemption" (NIE) provision provides theoretical relief but creates practical challenges:

Advantages of NIEs:

• Could exempt entire categories of workers (e.g., all physicians)
• Could provide employer-specific exemptions (e.g., critical rural hospitals)
• Could address individual exceptional cases

Disadvantages of NIEs:

• Discretionary and unpredictable: DHS has complete discretion, creating uncertainty
• Case-by-case burden: Unless categorical exemptions are issued, each employer must prepare and file an NIE request with substantial documentation
• Administrative delay: NIE processing adds time to already-lengthy H-1B processing
• Inconsistent application: Different DHS offices and U.S. consulates may apply different standards
• Not scalable: The U.S. healthcare system alone needs thousands of H-1B physicians annually; case-by-case NIEs cannot address this volume

The White House has suggested physicians "may" receive NIE exemptions, but as of this writing, no formal guidance has been issued. This uncertainty itself creates paralysis; hospitals making July 2026 hiring decisions now need answers now, not aspirational statements about potential future exemptions.

The Broader Policy Questions

Setting aside the legal and practical challenges, this proclamation raises fundamental questions about American immigration policy:

Does the H-1B program displace American workers?

The administration claims yes, citing unemployment rates among recent CS/CE graduates (6.1% and 7.5%). But these statistics require context:

• These unemployment rates are measured among the most recent graduates (ages 22-27), a cohort always facing higher unemployment as they transition from school to work
• The overall unemployment rate for computer occupations is 1.98%, indicating strong demand
• Multiple studies, including those by the National Bureau of Economic Research, find that H-1B workers complement rather than substitute for American workers, often creating additional jobs for U.S. citizens

The Economic Policy Institute (left-leaning) does find evidence that some employers misuse H-1B visas to pay below-market wages. The solution to wage suppression is to raise prevailing wage requirements and increase enforcement, rather than imposing a $100,000 fee that indiscriminately harms all H-1B usage, regardless of wage levels.

Is $100,000 the proper deterrent?

Even if one accepts that H-1B usage should be reduced, is a flat $100,000 fee the optimal mechanism? Consider the differential impact:

• Fortune 500 tech company hiring a $200K engineer: The fee is 50% of first-year salary; painful but absorbable
• Rural hospital hiring a $55K medical resident: The fee is 182% of first-year salary; economically irrational
• Nonprofit religious organization hiring a $30K priest: The fee is 333% of first-year salary; impossible

A wage-weighted fee (e.g., 25% of first-year salary) or a progressive fee structure would more rationally align the cost with the hiring decision without completely pricing out lower-wage but socially valuable positions.

 

Predictions and Likely Outcomes

Based on the legal arguments, precedent from prior Trump administration immigration litigation, and the coalition of plaintiffs, I predict:

Near-term (0-3 months):

• The lawsuit will result in a preliminary injunction hearing within 2-4 weeks
• There is a reasonable probability (>50%) that courts will issue at least a partial preliminary injunction, likely on APA procedural grounds
• The administration will argue for broad presidential authority under Section 212(f), citing Trump v. Hawaii
• The district court (Northern District of California) is likely to be skeptical of the fee, given the court's history on immigration issues

Medium-term (3-12 months):

• Regardless of the district court's ruling, appeals will proceed to the Ninth Circuit
• The Ninth Circuit has previously blocked multiple Trump administration immigration policies
• The administration will likely issue categorical NIE exemptions for physicians to moot those aspects of the lawsuit
• Pressure will mount from business groups, universities, and healthcare associations for congressional action
• The proclamation may be modified before its scheduled September 2026 expiration

Long-term:

• If the case reaches the Supreme Court, the outcome depends heavily on how the issue is framed: Is this about presidential power over entry (where the Court defers to the executive) or about executive authority to impose taxes without congressional authorization (where the Court jealously guards legislative prerogatives)?
• Even if the fee survives legal challenge, congressional action is likely, given the breadth of affected constituencies
• The broader debate about H-1B reform will continue, with Democrats generally supporting higher caps and easier pathways to permanent residence, and Republicans divided between pro-business wings favoring the program and nationalist wings seeking severe restrictions

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Update, Sept 26, 2025, AILA's Opinion
The American Immigration Lawyers' Association has agreed in its release with my assessment that the $100,000 penalty should not apply to H-1B amendments and transfers (I believe also to concurrent H-1Bs, but they have not specified this).

Watch our community discussions on these issues https://www.youtube.com/@immigrationdotcom/streams 

Successful H-1B Visa Interview on Sept 26 at Hyderbad

Update, Sept 22, 2025, FAQ Released by the USCIS
 

H-1B FAQ

Release Date 

09/21/2025

This Proclamation:

• Requires a $100,000 payment to accompany any new H-1B visa petitions submitted after 12:01 a.m. eastern daylight time on Sept. 21, 2025. This includes the 2026 lottery (Does this mean we will have to submit the $100K when we file for the lottery? Unclear.), and any other H-1B petitions submitted after 12:01 a.m. eastern daylight time on Sept. 21, 2025.
  • U.S. Citizenship and Immigration Services has so far taken such action by issuing guidance regarding the Proclamation, available here (PDF, 177.48 KB).
  • U.S. Customs and Border Protection has also issued guidance, available here.
  • The Department of State has posted guidance to all consular offices, consistent with the guidance from U.S. Citizenship and Immigration Services and U.S. Customs and Border Protection guidance. 

This Proclamation does not:

• Apply to any previously issued H-1B visas, or any petitions submitted prior to 12:01 a.m. eastern daylight time on Sept. 21, 2025.
• Does not change any payments or fees required to be submitted in connection with any H-1B renewals (How about transfers and amendments? Unclear, but I think they too will be exempted). The fee is a one-time fee on submission of a new H-1B petition.
• Does not prevent any holder of a current H-1B visa from traveling in and out of the United States.

Click for full text

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September 21, 2025

On September 19, 2025, President Trump signed a Presidential Proclamation titled "Restriction on Entry of Certain Nonimmigrant Workers," which fundamentally alters the H-1B visa landscape. The proclamation became effective at 12:01 a.m. Eastern Daylight Time on September 21, 2025, and imposes significant new requirements and restrictions.

Key Provisions from the Proclamation:

The $100,000 Payment Requirement: The Proclamation states: "the entry into the United States of aliens as nonimmigrants to perform services in a specialty occupation under section 101(a)(15)(H)(i)(b) of the INA, 8 U.S.C. 1101(a)(15)(H)(i)(b), is restricted, except for those aliens whose petitions are accompanied or supplemented by a payment of $100,000." https://www.whitehouse.gov/presidential-actions/2025/09/restriction-on-entry-of-certain-nonimmigrant-workers/, Official White House Presidential Actions (the definitive source for Presidential proclamations), Last visited September 21, 2025.

Who Is Protected: According to the USCIS implementation memo: "The proclamation does not apply to aliens who: are the beneficiaries of petitions that were filed prior to the effective date of the proclamation, are the beneficiaries of currently approved petitions, or are in possession of validly issued H-1B non-immigrant visas." https://www.uscis.gov/sites/default/files/document/memos/H1B_Proc_Memo_FINAL.pdf, USCIS Policy Memorandum (official agency guidance for immigration officers), Last visited September 21, 2025.

Scope of Restrictions: The Proclamation explicitly states: "The Secretary of Homeland Security shall restrict decisions on petitions not accompanied by a $100,000 payment for H-1B specialty occupation workers under section 101(a)(15)(H)(i)(b) of the INA, who are currently outside the United States."

Initial Confusion and Subsequent Clarifications

The implementation of this proclamation was marked by significant confusion across multiple key areas, requiring multiple clarifications from different administration officials:

1. Annual vs. One-Time Fee Confusion: Initially, Commerce Secretary Howard Lutnick told reporters the fee was "annual," but White House Press Secretary Karoline Leavitt later clarified on social media that the $100,000 is a "one-time fee, not annual."

2. Travel Restrictions Ambiguity: While the USCIS memo states current visa holders can continue to travel, the Proclamation's language about restricting "entry" created uncertainty about whether current H-1B holders abroad needed to return immediately.

3. Application Scope Uncertainty: Questions remain about whether the fee applies to extensions, renewals, or only completely new applications, with different sources providing varying interpretations.

Comprehensive Analysis: Documents, Confusion, and Clarity

I. The Presidential Proclamation: Full Context and Legal Framework

The September 19, 2025, Presidential Proclamation represents one of the most significant changes to the H-1B program in decades. The document begins with extensive justification for the action, stating: "The H-1B nonimmigrant visa program was created to bring temporary workers into the United States to perform additive, high-skilled functions, but it has been deliberately exploited to replace, rather than supplement, American workers with lower-paid, lower-skilled labor."

The proclamation cites concerning statistics, noting: "The number of foreign STEM workers in the United States has more than doubled between 2000 and 2019, increasing from 1.2 million to almost 2.5 million, while overall STEM employment has only increased 44.5 percent during that time." This data forms the foundation for the administration's argument that the H-1B program requires immediate intervention.

Legal Authority and Implementation

The proclamation invokes Presidential authority under sections 212(f) and 215(a) of the Immigration and Nationality Act, which grants the President broad discretion to restrict the entry of aliens when their entry would be "detrimental to the interests of the United States."

Key Operational Provisions:

1. Payment Requirement: "Employers shall, prior to filing an H-1B petition on behalf of an alien outside the United States, obtain and retain documentation showing that the payment described in section 1 of this proclamation has been made."
    
2. State Department Verification: "The Secretary of State shall verify receipt of payment of the amount described in section 1 of this proclamation during the H-1B visa petition process and shall approve only those visa petitions for which the filing employer has made the payment."
    
3. National Interest Exceptions: The proclamation provides that restrictions "shall not apply to any individual alien, all aliens working for a company, or all aliens working in an industry, if the Secretary of Homeland Security determines, in the Secretary's discretion, that the hiring of such aliens to be employed as H-1B specialty occupation workers is in the national interest."
    

II. The White House Fact Sheet: Political Messaging and Statistical Claims

The accompanying fact sheet amplifies the proclamation's justifications with specific company examples. According to the document, "One company was approved for 5,189 H-1B workers in FY 2025, while laying off roughly 16,000 U.S. employees this year. Another company was approved for 1,698 H-1B workers in FY 2025, yet announced it was laying off 2,400 U.S. workers in Oregon in July." https://www.whitehouse.gov/fact-sheets/2025/09/fact-sheet-president-donald-j-trump-suspends-the-entry-of-certain-alien-nonimmigrant-workers/, Official White House Fact Sheets (executive branch policy explanations), Last visited September 21, 2025.

The fact sheet emphasizes the administration's view that: "American IT workers have even been reportedly forced to train their foreign replacements under nondisclosure agreements."

III. USCIS Implementation Guidance: Bureaucratic Clarification

The USCIS memorandum, dated September 20, 2025, provides operational guidance but raises its own questions. The memo states: "This guidance applies to H-1B employment-based petitions filed after 12:01 AM ET on September 21, 2025." However, it notably does not address several critical implementation questions that would immediately affect stakeholders.

What the USCIS Memo Clarifies:

• Current visa holders can continue to travel
• Previously filed petitions are unaffected
• The restriction applies only prospectively

What the USCIS Memo Fails to Address:

• Whether the fee applies to extension petitions
• How the payment mechanism will function
• Timeline for implementing the payment system
• Specific procedures for national interest determinations

IV. Legal Framework and Expected Challenges

Given the sweeping nature of this proclamation and the unprecedented mechanism of imposing fees via executive action, legal challenges are inevitable. The proclamation's legal foundation and vulnerabilities merit careful analysis, as the outcome of litigation could determine whether this policy survives beyond its initial implementation.

Presidential Authority Under INA Section 212(f)

The proclamation relies on Section 212(f) of the Immigration and Nationality Act (8 U.S.C. § 1182(f)), which grants the President authority to "suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants" when their entry would be "detrimental to the interests of the United States." This is the same legal authority used for various travel bans, most notably the Trump administration's 2017 travel restrictions that were ultimately upheld by the Supreme Court in Trump v. Hawaii (2018).

However, using Section 212(f) to impose a monetary condition rather than an outright ban represents uncharted legal territory. While the President can restrict entry, constitutional scholars and we, immigration attorneys, question whether this authority extends to creating extraordinary new fee structures that could destroy a congressionally-created model.

The 2020 NAM v. DHS Precedent

A crucial legal precedent comes from the 2020 case National Association of Manufacturers v. Department of Homeland Security, where a federal judge enjoined Trump's earlier H-1B entry ban during the pandemic. The court's reasoning directly applies to the current situation.

In that case, the judge held that the proclamation likely exceeded Presidential authority because it addressed domestic economic issues (unemployment) rather than foreign policy concerns. The court stated unequivocally: "Congress, not the President, has the power to set immigration policy," and that delegated powers under Section 212(f) "do not extend to issues involving domestic policy."

The current proclamation's justification mirrors the problematic reasoning that courts rejected in 2020. Like the pandemic-era ban, this proclamation is primarily justified by domestic labor market concerns: protecting American workers' wages and employment opportunities. If courts apply the same reasoning, they may conclude that using immigration powers to address domestic economic policy exceeds Presidential authority under Section 212(f).

Administrative Procedure Act Violations

The proclamation's implementation bypasses the Administrative Procedure Act's (APA) notice-and-comment rulemaking requirements. Under normal circumstances, major changes to requirements must undergo a formal rulemaking process that includes public notice, a comment period, and agency responses to stakeholder concerns.

While presidential proclamations themselves are not subject to APA requirements, agency implementation of those proclamations can be challenged. If USCIS begins rejecting petitions for lack of payment or the State Department denies visas without the fee, these actions could be challenged as agency decisions made "not in accordance with law" or "in excess of statutory authority" under APA Section 706.

The 2020 injunction specifically prohibited DHS from "engaging in any action that results in the non-processing or non-issuance" of visas based on an invalid proclamation. A similar argument could be made that federal agencies cannot impose new exorbitant fee requirements without proper statutory authority or formal rulemaking.

Conflict with Statutory Framework

The Immigration and Nationality Act establishes a comprehensive framework for H-1B visas, including specific fee provisions. For example, Congress authorized a $1,500 training fee for certain H-1B petitions, with proceeds directed to workforce development programs. The INA contains no authorization for a $100,000 fee, nor does it grant the executive branch discretion to impose such paradigm-changing charges.

Legal challenges will likely argue that the proclamation effectively creates new statutory requirements that only Congress can authorize. The distinction between restricting entry (which the President can do) and imposing exorbitant fees (which requires Congressional authorization) may prove crucial in court.

Expected Legal Challenges and Timeline

Multiple legal experts predict imminent litigation. Our attorney colleagues and we have noted the proclamation is likely to face court challenges, which should result in it being preliminarily enjoined.

Similarly, immigration law specialists have observed that the proclamation exceeds executive authority and oversteps congressional rulemaking authority. These assessments from the immigration law community suggest a strong consensus that the proclamation faces serious constitutional and statutory challenges.

Business coalitions that successfully challenged the 2020 H-1B ban, including the U.S. Chamber of Commerce and National Association of Manufacturers, are likely to file suit again. These groups may seek a temporary restraining order or preliminary injunction in federal court, potentially in the Northern District of California, where they previously obtained relief.

If a court grants an injunction, it could halt enforcement of the fee requirement and entry restrictions, at least for the plaintiffs and potentially more broadly depending on the scope of the injunction. Given the legal precedents and constitutional issues involved, the proclamation faces a significant risk of being blocked or substantially modified by federal courts.

V. The Cascade of Confusion: Administrative Communication Failures

The implementation of this proclamation exemplifies how poor coordination between different government entities can create unnecessary confusion and anxiety among affected populations. The 48-hour period following the announcement provides a detailed case study in crisis communications, both the failures and the eventual corrections.

Timeline of Confusion and Clarification

Friday, September 19 (Announcement Day):

• Late afternoon: Presidential Proclamation signed
• Early evening: Commerce Secretary Howard Lutnick tells reporters the fee is "annual"
• Media reports focus on "$100,000 annual fee for H-1B visas"
• No detailed implementation guidance available
• Immigration attorneys begin advising clients based on preliminary interpretations

Saturday, September 20 (Clarification Day):

• Morning: Major corporations (Microsoft, JPMorgan, Amazon, Goldman Sachs) issue internal memos advising H-1B employees to avoid international travel pending clarification
• Midday: Press Secretary Karoline Leavitt posts on X (Twitter): "This is NOT an annual fee. It's a one-time fee that applies only to the petition."
• Afternoon: White House releases comprehensive Fact Sheet
• Late afternoon: USCIS issues Policy Memorandum
• Evening: U.S. Customs and Border Protection issues guidance confirming current visa holders can continue traveling

Problem #1: The Annual vs. One-Time Fee Debacle

The most immediate and economically significant confusion arose from conflicting statements by high-ranking administration officials. Commerce Secretary Howard Lutnick's characterization of the fee as "annual" was not a casual misstatement; it was reported across major news outlets. It created widespread panic among employers and H-1B beneficiaries.

An annual $100,000 fee would have represented an entirely different policy framework. For a typical three-year H-1B stay, this would mean $300,000 in fees alone, effectively pricing out all but the most essential or highly-compensated workers. The economic implications were staggering: even major technology companies would have been forced to drastically curtail their use of H-1B workers.

The correction came via Press Secretary Leavitt's social post on X, clarifying: "This is NOT an annual fee. It's a one-time fee that applies only to the petition." While this clarification was crucial, it came after 18 hours of confusion during which business decisions were being made based on incorrect information.

Analysis: This confusion stems from a fundamental failure of internal coordination. For a Cabinet Secretary and the White House Press Secretary to provide contradictory information about the core mechanics of a major policy reveals insufficient preparation and briefing. The fact that the correction had to be delivered via social media rather than through formal channels further underscores the ad hoc nature of the damage control effort.

Problem #2: Travel Restriction Ambiguity

The proclamation's language about restricting "entry" created immediate uncertainty about whether current H-1B holders traveling abroad needed to return urgently. The proclamation states that restrictions apply to "aliens who enter or attempt to enter the United States after the effective date." However, it also broadly restricts "entry into the United States of aliens as nonimmigrants to perform services in a specialty occupation."

The employers, our colleagues, and we advised H-1B holders to return immediately before September 21, 2025, interpreting the language as potentially affecting current visa holders.

The USCIS memo eventually clarified that "The proclamation does not impact the ability of any current visa holder to travel to or from the United States." Still, this clarification came only one day before the effective date, after many people had already made emergency travel arrangements.

Analysis: The proclamation's drafting created unnecessary ambiguity about who was affected. Clear, unambiguous language stating that current visa holders were unaffected should have been included in the original document, not relegated to subsequent agency guidance.

Problem #3: Scope of Application Uncertainty

Perhaps the most significant ongoing confusion concerns exactly which types of H-1B petitions will be subject to the $100,000 fee. The proclamation and accompanying documents provide conflicting or incomplete information:

• The proclamation refers to "petitions accompanied or supplemented by a payment"
• The USCIS memo applies to "H-1B employment-based petitions filed after 12:01 AM ET"
• Various news reports and legal analyses have suggested different interpretations about extensions, renewals, and transfers

Analysis: This ambiguity is particularly problematic because it affects immediate decision-making by employers and employees. Without clear guidance on whether extensions require the fee, current H-1B holders cannot make informed decisions about their career and immigration plans.

Problem #4: Implementation Timeline Vacuum

Neither the proclamation nor the USCIS memo provides specific information about how the payment system will function. Critical unanswered questions include:

• How will employers make the $100,000 payment?
• What documentation is required?
• Will this be integrated with existing USCIS fee systems?
• What happens to petitions filed before payment systems are operational?

Analysis: Announcing a policy without providing implementation details creates a compliance vacuum where well-intentioned petitioners cannot fulfill their obligations simply because the mechanism to do so does not exist.

V. Broader Policy Implications and Strategic Analysis

Economic Impact Assessment

The proclamation's economic impact extends beyond the direct cost of the fee. The additional compliance burden, uncertainty about implementation, and potential for legal challenges create indirect costs that may discourage legitimate use of the H-1B program.

Dramatic Cost Increase: The $100,000 fee represents an unprecedented cost escalation for H-1B petitions. By comparison, typical H-1B filing fees currently range from $6,000-$8,000 (including USCIS filing fees, anti-fraud fees, training fees, and premium processing). The new fee is more than 12 times the existing cost structure, fundamentally altering the economics of hiring foreign skilled workers.

Over a standard three-year H-1B term, the $100,000 upfront cost translates to approximately $33,000 per year in additional expense per worker. For companies that rely on volume H-1B hiring, particularly IT companies  that may sponsor hundreds of workers annually, this cost increase could prove prohibitive.

Revenue Scale and Policy Impact: The potential revenue implications reveal the policy's intended deterrent effect. In a typical year, approximately 85,000 new H-1B cap slots are available, plus an estimated 20,000-30,000 cap-exempt positions. If all positions required the $100,000 fee, the government could collect $10-11 billion annually. However, this theoretical maximum is unlikely to materialize precisely because the fee is designed to discourage filings.

The administration's success metric may not be revenue collected, but rather visas foregone. A sharp reduction in H-1B petitions filed would indicate the policy is achieving its goal of discouraging what the administration views as abuse of the program.

Corporate Response and Market Reaction: The immediate corporate response demonstrated the policy's disruptive potential. Within hours of the announcement, major corporations reportedly issued internal guidance to H-1B employees:

• Microsoft, JPMorgan, Amazon, and Goldman Sachs advised H-1B employees to avoid international travel until clarity emerged
• Several companies explicitly instructed overseas employees to return to the U.S. before the September 21 effective date
• Internal corporate legal teams, despite their sophistication, initially interpreted the proclamation cautiously as potentially affecting current visa holders

These reactions from Fortune 500 companies entities with substantial immigration law resources, underscore how the initial confusion affected even well-informed stakeholders.

Impact on Indian IT Services Industry: The policy's effects extend internationally (most likely by design), particularly to India, which accounts for over 70% of H-1B beneficiaries. Indian IT services companies (Infosys, Tata Consultancy Services, Wipro, and others) built business models around deploying teams of software engineers to client sites in the United States at competitive rates.

Nasscom, India's IT industry association, warned that the proclamation "could disrupt the global operations of Indian technology services companies that deploy skilled professionals to the United States." For these companies, paying $100,000 per worker could force a fundamental business model change, either dramatically increasing client billing rates or shifting more work to offshore delivery models.

Labor Market Effects and Unintended Consequences: The administration's stated goal is to "stop the undercutting of wages" and increase opportunities for American workers. However, economic analysis suggests the effects may be more complex:

• Wage increases for U.S. workers: If H-1B hiring decreases substantially, supply-demand dynamics could drive up wages in affected technical fields, particularly entry-level positions where H-1B workers have been most concentrated.
   
• Offshore substitution risk: Companies may respond to higher U.S. hiring costs by relocating work to overseas offices rather than hiring American workers. This could result in job reduction rather than job creation.
   
• Innovation and competitiveness concerns: Technology industry leaders argue that restricting access to global talent could harm American innovation and economic competitiveness. As one venture capital executive noted, imposing exorbitant fees "creates [a] disincentive to attract the world's smartest talent to the U.S."
   

Small Business and Startup Impact: The flat $100,000 fee structure creates particular challenges for smaller employers. While large corporations might absorb this cost for critical hires, startups and smaller technology companies,often drivers of innovation,may be priced out of the H-1B program entirely. This could inadvertently benefit large corporations by reducing competition for foreign talent while harming the entrepreneurial ecosystem.

Legal Vulnerabilities

The proclamation faces several potential legal challenges:

1. Procedural Challenges: As stated earlier, substantial fee changes typically require notice-and-comment rulemaking under the Administrative Procedure Act
2. Statutory Authority Questions: The use of 212(f) authority to impose fees rather than restrict entry may exceed Presidential powers
3. Equal Protection Concerns: The arbitrary $100,000 amount may not bear a reasonable relationship to the stated policy goals

Implementation Realities

The proclamation directs multiple agencies to undertake significant policy changes within tight timeframes:

• The Department of Labor must "initiate a rulemaking to revise the prevailing wage levels"
• The Department of Homeland Security must "initiate a rulemaking to prioritize the admission as nonimmigrants of high-skilled and high-paid aliens"
• Both departments must coordinate on verification and enforcement procedures

These requirements suggest that full implementation may take months or years, during which time the current confusion about scope and procedures is likely to persist.

VI. Missing Elements and Unanswered Questions

Several critical aspects of the new policy remain unaddressed in official communications:

Implementation Vacuum and Practical Challenges

Perhaps the most immediate problem facing stakeholders is that the proclamation creates legal obligations without providing the means to fulfill them. Despite the proclamation's September 21, 2025, effective date, no practical mechanism exists for employers to make the required $100,000 payment.

Payment System Does Not Exist: As Reuters reported on the effective date, "Reuters was not immediately able to establish how the fee would be administered." No government agency has announced a payment portal, bank account, or procedural guidance for submitting the $100,000. This creates a legal catch-22: employers are mandated to pay, but have no way to comply.

USCIS has not modified Form I-129 (the H-1B petition form) to include payment fields or instructions. The agency's fee payment systems are not configured to handle the new requirement. Until a payment mechanism is established, employers seeking to file new H-1B petitions face an impossible compliance situation.

Change of Status vs. Consular Processing Ambiguity: The proclamation restricts "entry" of H-1B workers, but it remains unclear whether this applies to change of status applications for individuals already in the United States. For example, F-1 students who are selected in the H-1B lottery typically change status to H-1B without leaving the country; no "entry" is required.

If the fee applies only to actual entry (consular processing), then F-1 to H-1B status changes might be exempt. However, if USCIS interprets the requirement more broadly, these domestic applications could also require the $100,000 payment. This distinction could affect tens of thousands of F-1 students annually.

Cap-Exempt Employer Uncertainty: Universities, research institutions, and nonprofit organizations that are exempt from H-1B numerical caps face particular uncertainty. The proclamation makes no distinction between cap-subject and cap-exempt employers, suggesting that universities hiring foreign researchers must pay $100,000 per petition.

For institutions with limited budgets, this requirement could effectively end their ability to hire foreign talent. As Holland & Knight noted, "it remains unclear whether nonprofits and universities will be required to pay the $100,000 fee." Until clarified, these institutions must assume the fee applies to their new H-1B hires.

Refund and Risk Management: The proclamation provides no guidance on refunds if petitions are denied. Given USCIS's historical denial rates and the potential for premium processing delays, employers face significant financial risk. If an employer pays $100,000 and the petition is subsequently denied, that investment may be unrecoverable.

This uncertainty compounds the already high stakes of H-1B filings. Employers must now consider not only the likelihood of petition approval, but also the financial risk of an unrefundable $100,000 payment.

B-Visa Restrictions

The proclamation references directing the State Department to "issue guidance, as necessary and to the extent permitted by law, to prevent misuse of B visas by alien beneficiaries of approved H-1B petitions that have an employment start date beginning prior to October 1, 2026." No such guidance has been issued, leaving uncertainty about how this provision will be implemented.

National Interest Determinations

While the proclamation provides for national interest exceptions, no guidance exists about:

• What criteria will be used for determinations
• What evidence must be submitted
• How long will such determinations take
• Whether industry-wide or company-wide determinations are realistic

Fee Structure and Purpose

The proclamation does not specify:

• Where the collected fees will be deposited
• How the funds will be used
• Whether any portion will support immigration services or enforcement
• How the $100,000 amount was determined

VII. Timeline and Future Implementation Milestones

Understanding the proclamation's timeline and key future dates is essential for strategic planning by all stakeholders. The policy creates several critical deadlines and decision points that will determine its long-term impact.

Current Status and Immediate Timeline

September 21, 2025 (Effective Date): The proclamation took effect at 12:01 AM EDT, creating the $100,000 fee requirement for new H-1B petitions. However, as discussed, no payment mechanism exists yet, creating a compliance vacuum.

October 2025 - February 2026 (Implementation Period): Federal agencies must develop and deploy the infrastructure necessary to collect and verify $100,000 payments. This includes:

• USCIS payment systems integration
• State Department visa processing modifications
• CBP entry verification procedures
• Inter-agency coordination mechanisms

We would not be shocked if, during this period, new H-1B filings (covered by the proclamation) are effectively suspended until payment procedures are established.

Critical Future Milestones

March 2026 (H-1B Lottery Season): The next H-1B cap registration period for FY2027 positions represents the first major test of the new policy. Key considerations:

• Registration vs. Payment Timing: It remains unclear whether the $100,000 payment will be required at registration (March 2026) or only upon petition filing (April-June 2026 for selected cases)
• Volume Impact: The fee could dramatically reduce registration numbers, potentially eliminating the lottery system if insufficient applications are received
• Employer Decision Points: Companies must decide by early 2026 whether to participate in the lottery, given the financial commitment required

April 2026 (Policy Review Period): The proclamation mandates a review "no later than 30 days following the completion of the H-1B lottery." This review will determine whether the policy continues beyond its initial 12-month term. The review involves the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security jointly submitting recommendations to the President.

Factors likely to influence the extension decision:

• Number of H-1B registrations and petitions filed under the new system
• Economic impact data on American worker employment and wages
• Legal challenge outcomes
• Industry and stakeholder feedback
• Overall immigration policy priorities

September 21, 2026 (Expiration Date): The current proclamation expires unless extended. If not renewed, the H-1B program would revert to previous requirements, though any regulatory changes (prevailing wage increases, lottery modifications) implemented during the year could remain in effect.

Implications for Different Filing Cycles

FY2027 Cap Cases (Selected March 2026, Starting October 2026):

• If the policy is extended in April 2026, these workers will need an employer payment of $100,000
• If not extended, these cases would proceed under traditional fee structures
• Employers must make participation decisions without knowing the extension outcome

FY2028 Cap Cases (Would be selected March 2027):

• Entirely dependent on whether the policy is extended beyond September 2026
• Could be subject to modified versions of the policy based on the first year's experience

Regulatory Implementation Timeline

Beyond the immediate fee requirement, the proclamation directs longer-term regulatory changes with their own timelines:

Prevailing Wage Rulemaking (Department of Labor):

• Proposed rule publication: Likely Q1-Q2 2026
• Public comment period: 60-90 days
• Final rule publication: Q3-Q4 2026 at the earliest
• Implementation: 6-12 months after finalization

H-1B Prioritization Rulemaking (DHS):

• May advance more quickly, as preliminary work was already underway
• Could potentially affect the March 2027 lottery cycle if finalized by late 2026

Legal Challenge Timeline Considerations

The litigation timeline could significantly affect implementation:

Immediate Challenges (Q4 2025): Temporary restraining orders or preliminary injunctions could halt enforcement within weeks or months of filing.

Appellate Process (2026): District court decisions will likely be appealed, creating uncertainty throughout the initial 12-month period.

Supreme Court Review (2026-2027): Given the constitutional questions involved, this case could ultimately reach the Supreme Court, potentially extending legal uncertainty beyond the proclamation's initial term.

Strategic Planning Implications

For the March 2026 Lottery Cycle:

• Employers must decide by February 2026 whether to register, likely without knowing the payment procedures
• Risk tolerance becomes a key factor in business planning
• Alternative hiring strategies should and would be developed as contingencies

For Academic and Fiscal Year Planning:

• Universities and research institutions face particular challenges in aligning academic calendars with uncertain policy timelines
• Budget planning must account for the potential $100,000 per hire costs
• Grant applications and research project staffing require alternative scenarios

For International Students:

• F-1 students graduating in spring 2026 face the most uncertainty, as their H-1B eligibility coincides with the first full implementation cycle
• STEM OPT extensions and other bridging strategies become more critical

Monitoring and Adaptation Requirements

Given the dynamic nature of this policy environment, stakeholders should establish systems for:

• Regular monitoring of federal register publications, agency guidance, and court filings
• Contingency planning for multiple scenarios (extension, modification, expiration, court injunction)
• Quarterly reviews of hiring strategies and immigration planning aligned with policy milestones

The proclamation's timeline creates a year of significant uncertainty followed by critical decision points. Success in navigating this environment requires understanding not only current requirements but also the rhythm of future deadlines and decision points that will shape the H-1B program's evolution.

VIII. Strategic Considerations for Stakeholders

Given the unprecedented nature of this policy change and the multiple areas of uncertainty, different categories of stakeholders should consider specific strategic approaches to navigate the current environment.

For Current H-1B Visa Holders

Travel and Mobility: Current H-1B visa holders can continue normal international travel patterns. The USCIS memorandum explicitly states: "The proclamation does not impact the ability of any current visa holder to travel to or from the United States." However, visa holders should be prepared for potentially increased scrutiny at ports of entry as CBP officers adapt to the new policy framework.

Documentation: Maintain complete documentation of current visa status, including Form I-797 approval notices and valid visa stamps. In the event of confusion at entry points, having comprehensive documentation readily available will facilitate smooth processing. There have been plenty of successful H-1B reentries. For example, an H-1B holder returned successfully after the proclamation https://lnkd.in/p/e-gAJXtU  

Extension Planning: H-1B holders approaching their maximum stay limits should consult with immigration counsel about extension strategies. While current guidance suggests extensions won't require the $100,000 fee, written confirmation from USCIS would provide additional certainty.

For Employers Planning New H-1B Hires

Budget Planning: Any employer considering sponsoring a foreign worker for H-1B status must now budget $100,000 in addition to existing filing fees, legal costs, and prevailing wage requirements. This represents a fundamental shift in cost-benefit calculations for international hiring.

Alternative Visa Categories: Employers should explore alternative immigration pathways that may be less affected by current policy changes:

• O-1 visas for individuals with extraordinary ability or achievement
• L-1 visas for intracompany transferees (though these require qualifying relationships and may face future restrictions)
• TN status for Canadian and Mexican nationals in qualifying professions
• Cap-exempt H-1B positions at universities and qualifying research institutions (though fee applicability remains unclear)

Timeline Considerations: Employers should avoid making any new H-1B filing commitments until payment procedures are clarified. The current compliance vacuum makes it impossible to fulfill legal obligations under the proclamation.

Legal Review: Any employer with pending or planned H-1B cases should consult qualified immigration counsel to assess case-specific implications and monitor potential legal challenges that could affect the policy's implementation.

For Universities and Research Institutions

Immediate Assessment: Cap-exempt employers should immediately assess their exposure to the new fee requirement. While the proclamation doesn't explicitly exempt educational and research institutions, the financial impact could be devastating for these typically budget-constrained organizations.

National Interest Arguments: Universities and research institutions should prepare documentation of their contributions to national interests, particularly in STEM fields, critical research areas, and national security priorities. This preparation could support requests for exemptions if DHS establishes a national interest waiver process.

Alternative Hiring Strategies: Institutions should consider increasing recruitment of domestic candidates and explore visiting scholar programs or other alternatives that don't require H-1B status for critical international hires.

For F-1 Students and Future H-1B Applicants

Status Maintenance: F-1 students approaching graduation should maintain valid status and explore all available Optional Practical Training (OPT) options to maximize time for policy clarification.

Change of Status vs. Consular Processing: Students should understand the potential distinction between changing status within the U.S. (which may not require the fee if no "entry" occurs) versus departing and applying for an H-1B visa abroad (which clearly would require payment).

Alternative Pathways: International students should explore alternative immigration pathways, including:

• Advanced degree programs that could lead to EB-2 green card eligibility
• Entrepreneurship programs in states that support startup visas or similar initiatives
• Research positions at cap-exempt institutions

For Immigration Practitioners

Client Communication: Attorneys should immediately communicate with all clients about the proclamation's implications, emphasizing both the protections for current visa holders and the uncertainties surrounding new applications.

Documentation and Evidence: Practitioners should begin collecting evidence for potential national interest waiver applications, even though no process has been established. This preparation could prove valuable if DHS creates an exemption procedure.

Litigation Monitoring: Given the strong likelihood of legal challenges, practitioners should monitor federal court filings and be prepared to advise clients on how injunctive relief might affect their cases.

Fee Structure Planning: Law firms should consider how to handle the financial risk and logistics of the $100,000 payment requirement, including client agreements, escrow arrangements, and refund policies.

General Risk Management Considerations

Policy Volatility: All stakeholders should recognize that this policy was implemented via presidential proclamation and could be modified, suspended, or revoked through subsequent executive action, legislative intervention, or court order. Long-term planning should account for this inherent uncertainty.

Litigation Timeline: Legal challenges are virtually certain and could result in temporary restraining orders or preliminary injunctions that halt policy implementation. Stakeholders should monitor court proceedings and be prepared for rapid changes.

Agency Guidance Evolution: Implementation details will continue to evolve as agencies issue additional guidance. Stakeholders should establish reliable information sources and review official communications regularly.

Congressional Action: While unlikely in the short term, Congress could potentially override or modify the proclamation through legislation. Stakeholders should monitor Congressional responses and potential bipartisan efforts to address the policy.

This unprecedented policy change requires careful navigation by all affected parties. The combination of legal uncertainty, implementation gaps, and potential litigation creates a complex environment where informed decision-making and professional guidance are essential.

Conclusion

The September 19, 2025 H-1B proclamation represents a significant policy shift that affects hundreds of thousands of workers and thousands of employers. However, its implementation has been marked by confusion, contradictory statements, and insufficient guidance that has created unnecessary anxiety and compliance challenges.

While the administration's stated goals of addressing H-1B program abuse and protecting American workers are legitimate policy objectives, the execution of this particular initiative demonstrates the importance of careful coordination, clear communication, and comprehensive implementation planning when making major changes to immigration policy.

For foreign nationals, employers, and immigration practitioners, the key takeaway is that while the broad framework of the new restrictions is clear, many critical details remain undefined. Continued monitoring of agency guidance and legal challenges will be necessary to understand the full scope and impact of these changes.

Current Status Summary:

• Effective Date: September 21, 2025, 12:01 AM EDT
• Fee Amount: $100,000 (confirmed as one-time, not annual)
• Protected Categories: Current visa holders, previously filed petitions, approved petitions
• Unresolved Issues: Extensions/renewals, implementation procedures, national interest criteria, B-visa guidance

As this policy continues to evolve through agency rulemaking and potential litigation, affected parties should consult qualified immigration counsel and monitor official government sources for updates and clarifications.

The information in this article is for educational purposes only and does not constitute legal advice. Consult qualified immigration counsel for case-specific guidance.

Links

Proclamation: 
https://www.whitehouse.gov/presidential-actions/2025/09/restriction-on-entry-of-certain-nonimmigrant-workers/ 

Proclamation fact sheet from White House:
https://www.whitehouse.gov/fact-sheets/2025/09/fact-sheet-president-donald-j-trump-suspends-the-entry-of-certain-alien-nonimmigrant-workers/ 

USCIS Memo:
https://www.uscis.gov/sites/default/files/document/memos/H1B_Proc_Memo_FINAL.pdf 

Tweet from the White House Press Secretary:
https://x.com/presssec/status/1969495900478488745?s=66 

Video Discussion, Rajiv with the Community:
Recorded during the confusion, some of the information is already outdated. Nevertheless, there are plenty of useful facts and ideas here.

https://www.youtube.com/live/-VuFClk0G88?si=ModhYgJgOvtJZhRH 

An H-1B holder returned successfully after the proclamation
https://lnkd.in/p/e-gAJXtU