The American Immigration Council is a non-profit, non-partisan organization. On Friday evening, September 19, 2025, a presidential proclamation panicked many U.S. businesses and H-1B workers who were outside the United States.
As written, the proclamation prohibited the entry of noncitizens to the United States in H-1B status, after 12:01 am Eastern Time on September 21, 2025 (the deadline) if the employer that had filed an H-1B petition for them had not paid a $100,000 fee. The restriction will expire in 12 months, unless extended. The proclamation also would restrict USCIS adjudication of H-1B petitions filed on behalf of noncitizens abroad if the petitioner had not paid the fee.
A White House fact sheet issued on September 19 also said that the proclamation restricts entry for H-1B workers “unless their petition is accompanied by a $100,000 payment.” Some U.S. companies notified their H-1B workers to return to the United States immediately.
Trump administration reaction after the announcement
Within 24 hours of issuing the initial proclamation and the ensuing panic, the Trump administration claimed that it was intended to apply prospectively. The State Department and components of the Department of Homeland Security (DHS) issued various interpretations of what the proclamation means.
A September 20, 2025 memorandum issued by U.S. Customs and Border Protection (CBP) seems the most clear-cut and narrower in scope than the proclamation’s wording. According to CBP, the $100,000 fee applies only to new H-1B petitions filed after the deadline on behalf of noncitizens who are outside the United States. CBP also stated that the $100,000 fee did not apply to noncitizens with “validly issued” H-1B visas, which means these noncitizens could be admitted even if they return to the United States after the deadline.
A second memo, issued the same day by U.S. Citizenship and Immigration Services (USCIS), says the proclamation applies only to H-1B petitions filed after the deadline. Unlike CBP, the USCIS memo does not limit the fee requirement to new petitions filed for noncitizens who are abroad. USCIS also says the fee does not apply to noncitizens already holding “validly issued” H-1B visas.
The State Department issued an “H-1B FAQ” on September 21, saying that the $100,000 fee applies to “any new H-1B visa petitions submitted after” the deadline. Like USCIS, the State Department’s FAQ does not limit the fee requirement to new petitions filed for noncitizens who are abroad. The FAQ also says the fee applies to the “2026 lottery . . .” This is sloppy drafting—it seems likely the agency is referring to the H-1B lottery that will be conducted in calendar year 2026, which is for the Fiscal Year 2027 lottery.
Unanswered questions
The proclamation and agency memos leave many scenarios unanswered. For example:
- Is the $100,000 fee really limited to new H-1B petitions filed after the deadline on behalf of noncitizens who are abroad? The form an employer files to obtain an H-1B classification currently requires that “new employment” be selected if the employer/petitioner also will be requesting USCIS to approve a change of status to H-1B for the noncitizen/beneficiary who is in the United States in a different nonimmigrant status (such as an F-1 student).
- Is the $100,000 fee required for Canadian citizens? While they are visa exempt, the proclamation intends to restrict entry in H-1B status.
- The proclamation also gives the DHS Secretary discretion to except “any individual [noncitizen], all [noncitizens] working for a company, or all [noncitizens] working in an industry” if the Secretary determines that the hiring of such H-1B worker(s) “is in the national interest and does not pose a threat” to national security or welfare. Congress has already determined that U.S. institutions of higher education or “a related or affiliated nonprofit entity,” or nonprofit research or governmental research organizations are exempt from the annual “cap” on H-1B visa numbers. Will the DHS Secretary provide an exception in advance to any petitioner that demonstrates to USCIS that it is “cap exempt” or will each petitioner be required to seek an individual exception?
- According to the CBP memo, an H-1B petition approved before, or pending as of the deadline, or an H-1B petition filed after the deadline for a noncitizen in the United States would not be subject to the $100,000 fee. But if the beneficiary of an approved petition in one of these categories needed an H-1B visa to enter the United States after the deadline, would the fee be required?
- Although courts have repeatedly rejected the State Department’s argument that consular officers can refuse to issue visas when a visa category is subject to an entry ban, are consular officers going to be directed to refuse H-1B visa applications if the $100,000 fee is not paid?
- How is the $100,000 fee going to be administered? The proclamation restricts USCIS adjudication if the fee is not paid and also requires the Secretary of State to “verify” payment receipt. Must an employer submit the fee with its H-1B petition? Or will USCIS issue a request for evidence to collect the fee since there currently is no payment mechanism? How will payment verification be accomplished?
The presidential proclamation is based on a false premise and will harm U.S. competitiveness
The proclamation likely will face legal challenge as conflicting with immigration law for restricting entry and for fees associated with the H-1B category.
It is also wrong about the H-1B program. Employers who comply with the wage and working condition requirements for hiring workers in H-1B status could not depress the wages of, or foreclose job opportunities for similarly-situated U.S. workers. If an employer has abused the H-1B program, then the administration should be using enforcement tools already available. Instead, the administration is penalizing employers who correctly utilize the H-1B program to hire noncitizens with the skill sets they need.
A large, very profitable employer may be able to absorb a $100,000 fee with little impact to its bottom line. But what about start-ups, small businesses, or employers in sectors such as hospitals or public school systems? If a start-up has identified a noncitizen with the latest knowledge of AI, will that start-up be delayed or precluded from pursuing new product development because it cannot afford the $100,000 fee? Will a public school have to increase class size rather than expand the number of classes in a grade because it cannot afford a $100,000 fee for an H-1B worker?
This $100,000 fee skews the marketplace by interfering with employers’ ability to decide how a mix of U.S. and H-1B workers will enable it to maintain or improve its operations. Foreign competitors will benefit if they can hire the H-1B workers that U.S. employers will forego because of this unwarranted fee.
