The American Immigration Council is a non-profit, non-partisan organization. Many U.S. employers and H-1B workers panicked when the Trump administration issued a proclamation on September 19, 2025, that appeared to require a $100,000 payment for a noncitizen to enter the United States with an H-1B visa after 12:01 am Eastern Time on September 21. Within 24 hours, the administration clarified that the $100,000 fee would only apply prospectively. But many questions remained, and the White House and agencies were not consistent in messaging as to who would be affected.
On October 20, 2025, U.S. Citizenship and Immigration Services (USCIS) posted information as to how it would implement the proclamation. If subject to the proclamation, payment must be made through pay.gov before a U.S. employer files an H-1B petition with USCIS. The U.S. employer/petitioner must submit either proof of payment or evidence that it received an exception or USCIS will deny the petition.
When does the Proclamation apply?
USCIS confirmed that the proclamation does not apply to:
- Petitions filed before 12:01 a.m. Eastern Time on September 21, 2025. This means that a noncitizen can be issued an H-1B visa, or be admitted to the United States in H-1B status—without the fee being collected—if the approved H-1B petition was filed before this deadline.
- Previously issued and currently valid H-1B visas.
The agency also resolved some questions by identifying the following situations when an H-1B petition is filed on or after 12:01 am Eastern Time on September 21, 2025:
- Fee payment or exception required if the noncitizen on whose behalf the H-1B petition was filed (the beneficiary) is outside the United States and does not have a valid H-1B visa.
- Fee payment or exception required if the beneficiary is in the United States but the H-1B petition requests consular, port of entry, or preflight inspection notification if USCIS approves the petition.
- No fee required to file an H-1B petition if USCIS approves an amended H-1B petition, or approves a request for extension of stay in H-1B status or a request for change of status from another nonimmigrant status to H-1B. (A beneficiary must be in the United States when a U.S. employer files an H-1B petition requesting that USCIS approve either an extension or change of status in addition to approving the H-1B classification.)
- No fee required for a beneficiary of an H-1B petition for which USCIS approved an amendment, extension of stay, or change of status who later travels abroad and applies for an H-1B visa based on that approved petition and/or seeks to reenter the United States on a valid H-1B visa.
But questions remain as to USCIS’ statement:
[I]f 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 noncitizen 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 [noncitizen] 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.
These questions include:
- How will payment be requested? Will USCIS issue a Notice of Intent to Deny, which would give the U.S. employer/petitioner the option of withdrawing the H-1B petition without paying the fee?
- A U.S. employer/petitioner could request an amendment, which if denied, would mean the H-1B worker remains in their current situation and does not leave the United States. For example, certain changes of work site require that an amendment be filed—no extension of H-1B status is requested and the U.S. employer/petitioner intends to keep the H-1B worker at the current worksite if the petition is denied. Why would a fee be due?
- What will USCIS do if it denies an extension of stay or change of status request but the U.S. employer/petitioner did not complete the section of the petition designating consular or other notification (since notification is unnecessary if USCIS approves the extension or change of status)?
National interest exception
USCIS’ description of the national interest exception is far more restrictive than the presidential proclamation indicates it should be. The proclamation gives the DHS secretary discretion to provide an exception to any noncitizen, and by category, “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. But the DHS secretary has only provided for individual determinations.
USCIS describes the DHS secretary’s grant of a national interest exception as an “extraordinarily rare circumstance” where the secretary determines that four criteria have been met:
- The noncitizen’s presence in the United States is in the national interest.
- No “American worker is available to fill the role.”
- The noncitizen does not pose a threat to the national security or welfare.
- Requiring the U.S. employer/petitioner to pay the fee would “significantly undermine U.S. interests.”
The restrictive criteria likely will discourage many U.S. employers petitioners from applying. A U.S. employer must submit the exception request to a dedicated DHS email address before filing the H-1B petition. USCIS requires that “evidence of the exception” be submitted with an H-1B petition for which the fee otherwise would be due upon filing or the agency will deny the H-1B petition.
Lawsuits challenging the Proclamation
Two lawsuits have already been filed that challenge the H-1B proclamation.
The first, Global Nurse Force v. Trump, filed in the U.S. District Court for the Northern District of California, shows the range of U.S. employers and individuals affected by the proclamation. For example, one plaintiff is a union with members who are involved with medical residency training and education, advancing patient care, and expanding access to healthcare. Another plaintiff is a religious missionary order which relies on the H-1B category for religious workers with foreign language fluency.
The second lawsuit, Chamber of Commerce of the United States v. U.S. Department of Homeland Security, was filed in the U.S. District Court for the District of Columbia by the Chamber and the Association of American Universities (AAU) on behalf of their members. On October 24, 2025, the Chamber and the AAU filed a motion to stop the enforcement of the proclamation against them and their members while the lawsuit is pending, or alternatively for a decision that the proclamation is unlawful and vacating it (so the proclamation would not apply to anyone). The court has given the government until November 28 to oppose the motion and the court could decide the motion any time after December 8.
In both cases, plaintiffs maintain that the president does not have the authority to create new requirements for the H-1B program, which Congress established, including what fees may be charged; that the fee is not permitted by the authority Congress gave to the president to restrict entry of certain noncitizens—in one case calling the fee an unlawful tax; and that agency implementation is unlawful.
The proclamation is vulnerable to attack because its structure and requirements are inconsistent with its stated intent to restrict entry of H-1B visa holders. The proclamation ties the $100,000 payment to the filing of an H-1B petition. But USCIS approval of an H-1B petition is not enough for entry to the United States and USCIS does not decide who gets to enter. The proclamation’s focus on claimed abuses in the H-1B program in the United States—which can be addressed by existing law and regulations—also underscores that the fee is not an entry restriction.
As illustrated by the two complaints, the fee will restrict or eliminate the use of the H-1B category by many types of U.S. employers, and noncitizens who benefit the public by their work in many different fields. Employers who comply with the existing H-1B program requirements should not be precluded from keeping or adding H-1B workers to their workforce because of the $100,000 fee.
