Understanding the New $100,000 H-1B Fee and its Effect on U.S. Employers

On Friday, September 19, 2025, President Trump issued a Proclamation entitled “Restrictions on Entry of Certain Nonimmigrant Workers” that imposes a $100,000 fee for most new H-1B visa petitions and restricts the ability of certain H-1B visa holders to enter the United States.  The H-1B visa is the workhorse of the U.S. immigration system, currently used by approximately three-quarters of a million U.S. workers to provide high-skilled labor in “specialty occupations” requiring at least a related bachelor’s degree or its equivalent.  The Proclamation blames H-1B visa holders and unscrupulous employers for alleged exploitation of the H-1B program, which has resulted in harm to US students and workers and seeks to address these supposed negative outcomes by limiting the U.S. entry of future H-1B workers.

The Proclamation’s plain language appeared to bar any H-1B visa holder form entering the United States without having paid a new $100,000 fee and would have applied the same fee to many future H-1B visa petitions filed with the Department of Homeland Security. The immediate response was widespread confusion, with some H-1B visa holders cancelling plans or scheduling return flights to the United States before the Proclamation’s effective date of 12:01 AM on September 21, 2025.

Government representatives’ public statements and tweets at the Proclamation’s announcement and during the days following were at times unclear. Official guidance and FAQs issued by US Customs and Border Protection (CBP), United States Citizenship and Immigration Services (USCIS), and US Department of State (DOS) released over the weekend added partial clarity to the Proclamation’s intended scope, but questions remain.

Overview of the Proclamation’s Main Provisions and Subsequent Government Guidance

The plain language of the proclamation and later guidance from CBP, USCIS, and DOS lay out the following provisions of the Proclamation:

• The U.S. Department of State (DOS) will enforce a 12-month entry restriction on anyone entering in H-1B status without having paid a new $100K fee.  The plain language of the Proclamation would apply to all H-1B entrants.
  • UPDATE: A September 20, 2025 CBP memorandum clarifies that the Proclamation “only applies prospectively to petitions that have not yet been filed.  It does not impact aliens who are the beneficiaries of currently approved petitions, any petitions filed prior to 12:01 AM ET on September 21, 2025, or aliens in possession of validly issued H-1B non-immigrant visas.”  It further states that USCIS and DOS will only implement the Proclamation for “employers submitting petitions on behalf of aliens outside the United States for new H-1B petitions only.”  Finally, it explains that “The Proclamation does not impact the ability of any current visa holder to travel to or from the United States.  CBP will continue to process current H-1B visa holders in accordance with all existing policies and procedures.”  A September 21, 2025 DOS FAQ largely mirrors the CBP Memorandum while a separate DOS “U.S. Visa News” release clarifies that the “Proclamation’s restrictions on visa issuance and entry apply only to aliens seeking visa issuance or entry into the United States based on H-1B petitions filed with USCIS after the Proclamation’s effective date[.]”  As a result, H-1B employees with petitions filed before September 21, 2025 should be able to obtain a visa stamp at a U.S. Embassy or Consulate overseas without becoming subject to the Proclamation.

• The U.S. Department of Homeland Security (DHS), through USCIS, will restrict decisions on H-1B petitions for individuals currently outside the U.S. that have not paid the new $100K fee.  The plain language of the Proclamation would apply the new fee to any H-1B petitions filed on or after September 21, 2025 whose beneficiaries are outside the U.S.
  • UPDATE:  A September 20, 2020 USCIS memorandum and a September 21, 2020 USCIS FAQ clarify that the Proclamation “only applies prospectively to petitions that have not yet been filed” before September 21, 2025 and that it “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.” It also clarified that the Proclamation “[d]oes not change any payments or fees required to be submitted in connection with any H-1B renewals. The fee is a one-time fee on submission of a new H-1B petition.”

• Instructs DOS to issue guidance on B visa misuse by H-1B applicants outside the US prior to their H-1B petitions becoming effective on Oct. 1, 2026.  B visas allow business visitors and tourists to temporarily enter the U.S. for non-work activities.
• This provision is likely intended to stop H-1B beneficiaries from entering the U.S. as visitors then changing to H-1B status from within the U.S. to avoid the new $100,000 fee.

• Instructs the Secretary of Labor to initiate rulemaking to: (1) revise and raise H-1B prevailing wage levels and (2) update the H-1B lottery to prioritize high-skilled, high-paid individuals.
  • H-1B regulations require that U.S. employers pay H-1B workers the higher of either the established prevailing wage for the particular position in that location or what the employer pays its U.S. workers for the same position. The government seeks to require higher prevailing wages for H-1B workers.  Further, the H-1B’s annual 85,000 visa quota is currently distributed via a random lottery.  The government wishes to change H-1B selection to favor higher-paid, higher-skilled workers.

• Establishes an exception to the $100,000 fee for H-1B workers in a role, company, or industry that is “in the national interest and does not pose a threat to the security or welfare of the United States.”
  • It is unclear how the exception would be adjudicated or requested, but it will likely require submission of case-specific evidence similar to how National Interest Exceptions were requested during the COVID travel ban. Critics of the Proclamation fear that the exception could be administered to favor allies of the administration.

Given the recency of the Proclamation and the absence of implementing rules or programs, various questions remain unanswered.  For example, it is unclear whether this Proclamation applies to H-1B1 (Chile/Singapore) or E-3 (Australia) visa holders since they also fall in the category of specialty occupation visas, but are not directly mentioned in the Proclamation, or how “cap-exempt” H-1B petitions may be treated since they are not part of the standard H-1B lottery process.  The definition of a “new” H-1B petition has not been fully clarified, so it is unclear how the government would treat H-1B change of employer petitions, renewals of H-1B status after time in a different visa status or outside the U.S., or first-time changes to H-1B status from another visa status while inside the U.S.  Further, visa stamp issuance at U.S. Embassies and Consulates may or may not be restricted in some cases involving H-1B visa petitions filed after the Proclamation’s effective date.  We expect additional guidance in the coming days and instructions on how to pay the fee and request an exception.

Given the Proclamation’s expansive reach, quick effective date, and lack of clarity, there will be likely be immediate legal challenges with strong chances of success.

Guidance for Employers

Prior to the CBP, USCIS, and DOS guidance, many H-1B visa holders and their employers scrambled to cancel international travel plans and return to the U.S. before Sunday’s effective date.  Based upon recent government memoranda, it is likely safe for employees who are beneficiaries of approved H-1B petitions, holding valid H-1B visas to travel internationally. It does not appear that the Proclamation will apply to H-1B extensions and renewals, but it is not clear how it applies to other petitions involving “new employment,” such as changes of employer petitions or first-time changes from another status to H-1B status.

Do not rely on public statements or social media posts, even if they are from official sources.  Reliable guidance will come in the form of agency memoranda, published rules, official releases, new Proclamations or Executive Orders. We recommend that U.S. employers consult with counsel in all cases not clearly covered by the Proclamation and the subsequent official agency releases and that H-1B employees limit unnecessary international travel, when possible.

If the Proclamation withstands judicial review in the coming weeks, we expect procedures to be issued by the relevant agencies that will detail how employers can pay the new fee or request an exception to it. We also expect new proposed rules to be published in the coming weeks outlining changes to the H-1B program’s prevailing wage and registration (lottery) parameters, which will affect all H-1B future visa petitions, including extensions and renewals, and may alter related green card petitions for H-1B workers.

Squire Patton Boggs will continue to monitor and provide updates on these developments.  Please reach out to your SPB contacts if you require assistance. 

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The opinions expressed in this update are those of the author(s) and do not necessarily reflect the views of the Firm, its clients, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.