Key Takeaways:
- President Donald Trump announced last Friday via proclamation that the entry of certain H-1B nonimmigrant workers into the United States will be restricted pending payment of a $100,000 fee. According to the proclamation, the fee became effective 12:01 a.m. EDT on September 21, 2025, and it will remain in effect for 12 months. White House Press Secretary Karoline Leavitt has since stated on the social media site X that current H-1B workers are not subject to the new fee. The White House stated that current H-1B visa holders will continue to be able to travel internationally, obtain visas and file future extension without being subject to the fee. Leavitt also clarified that the fee will first apply to H-1B lottery cases submitted in 2026.
- Under the new rule, the secretary of Homeland Security will have the discretion to grant a fee exemption for individuals, organizations or whole industries based on national interest considerations.
- While some informal clarifications have been made regarding implementation of the $100,000 fee, it is unclear how some aspects of the new fee will be administered, those it affects and when exactly it will be implemented. H-1B nonimmigrant visa holders are cautioned to refrain from international travel until the government provides further guidance.
Background on the H-1B Classification
The H-1B nonimmigrant visa program is the United States’ largest employment-based temporary immigration pathway, created to bring foreign workers into the United States to perform high-skilled labor in specialized occupations. Each year, Congress has authorized the issuance of 85,000 H-1B visas. When demand exceeds the congressionally mandated cap, employers register their prospective foreign workers in an annual lottery through which registrants are chosen at random. Employers whose registrations are selected may then submit to the United States Citizenship and Immigration Service (USCIS) full H-1B petitions, in which they must prove (i) the offered job qualifies as a specialty occupation, (ii) the foreign worker meets the educational requirements for the job and (iii) the employer will pay the worker the prevailing wage for the occupation in the area of intended employment. Universities and certain nonprofit organizations are exempt from the H-1B lottery requirements.
Effective Date and Scope
The proclamation was signed by the president on September 19, and it contains language that suggested the fee would be broadly applied to H-1B workers currently outside the United States. The next day, memoranda issued by the USCIS and Customs and Border Protection clarified that the $100,000 fee will only apply prospectively to H-1B petitions that have not yet been filed. USCIS’ memo was silent on the question of whether H-1B petitions filed after September 21, 2025, by universities and other nonprofit H-1B lottery-exempt organizations would be subject to the $100,000 fee.
In response to widespread confusion caused by the broadly worded statements, the White House informally clarified via posts on X that the $100,000 fee would apply only to H‑1B lottery cases filed in 2026 and not to existing H‑1B visa holders. If implemented as described, collection would begin no earlier than April 1, 2026, when newly selected cap‑subject registrants file their petitions. Importantly, this interpretation also suggests that cap‑exempt petitions – for employment by or at institutions of higher education, related or affiliated nonprofit entities, or nonprofit/governmental research organizations – would fall outside the fee’s scope because they proceed outside the statutory cap/lottery system. But additional clarification remains necessary because the plain language of the proclamation and subsequent agency memoranda conflicts with the social‑media statements as to both scope (cap‑subject vs. cap‑exempt filings) and effective date.
Litigation
Multiple legal challenges seeking to invalidate the new $100,000 fee and block the policy’s implementation are expected. There are several possible grounds for future lawsuits, including an argument that the policy should have been adopted through the standard federal rulemaking process under the Administrative Procedure Act, which includes a notice and public comment period, rather than by presidential proclamation. Challenges to the proclamation may eventually need to be decided by the Supreme Court.
National Interest Exception
Section 1(c) of the rule states that the secretary of Homeland Security can exercise discretion to exempt individuals, companies or whole industries from the rule. There is no defined process for requesting an exemption or waiver of the fee, although we can expect future clarification on this issue.
H-1B Wage Increases
The proclamation additionally orders the U.S. Department of Labor (DOL) to reassess how wage levels are set for H-1B petitions. It is unclear how or when this reassessment will take place and what repercussions it could have for H-1B workers and employers. It is also unclear to what extent private wage surveys will continue to be permitted as an alternative to the DOL wage system used for H-1B filings.
Conclusion
The White House has announced that new H-1B petitions filed after September 21, 2025, must be accompanied by a new $100,000 government filing fee. If the fee is not paid, the H-1B worker will not be permitted to enter the United Status during the 12-month effective period of the proclamation. According to White House statements, the fee will apply prospectively and will not affect existing H-1B workers as they travel, change H-1B employers or file future H-1B extensions and amendments. Fee waivers can be granted at the discretion of the secretary of Homeland Security, although an exact process for requesting an exemption has not yet been announced. Much about how this fee will be administered and when and to whom it applies is still unclear. We will update this article as further information becomes available.
