The new presidential proclamation, which institutes a $100,000 fee and places restrictions on the entry of H-1B nonimmigrants into the United States, has created significant confusion. Section 1(b) of the proclamation instructs the Secretary of Homeland Security to restrict decisions on H-1B petitions for foreign workers “who are currently outside the United States”. However, subsequent pronouncements from relevant agencies and from the White House state that the restriction applies to any new H-1B petitions submitted after the deadline.
To clarify, here is what we currently understand to be outside the scope of the proclamation, according to U.S. Citizenship and Immigration Services (USCIS):
- Any H-1B petitions submitted before Saturday, September 20, 2025.
- Any previously issued H-1B visa or H-1B status.
- The ability of H-1B visa holders (and those who are visa-exempt) to continue to travel to and from the United States.
- H-1B “renewals”.
Both USCIS and U.S. Customs and Border Protection (CBP) have issued internal memos confirming the above. The U.S. Department of State (USDOS) has issued similar guidance, but it does not appear to be publicly available. H-1B visas that fall within these criteria are still being issued, and H-1B visa holders are still entering the U.S. by air, land, and sea.
Moving forward, we understand the following will apply:
- All “new” H-1B petitions filed on or after Sunday, September 21, 2025, will require a one-time $100,000 payment.
- Cap-exempt H-1B petitioners are not exempt from the $100,000 payment.
- The new fee requirement will remain in place for one year.
- Within 30 days from the next H-1B lottery (March 2026), the agencies will recommend whether to extend the $100,000 payment requirement.
Uncertainty remains because the proclamation and agency pronouncements use broad language and seem to avoid terms that are defined in the immigration regulations relative to USCIS H-1B processing. For example, it is unclear whether H-1B extension petitions for a change of employer, as opposed to extensions with a current employer, will be viewed as “renewals”.
The proclamation also allows the Department of Homeland Security (DHS) to designate specific individuals, companies, and industries that are in the national interest and thus exempt from the $100,000 payment requirement. No mechanisms for seeking such designations have been disclosed. It is unclear whether exemptions will be automatic or if employers must submit requests similar to the National Interest Exception (NIE) letters used during the Covid-19 travel bans, or if the standard will be similar to the EB-2 National Interest Waivers.
Some industries are already exerting political pressure. Bloomberg News reported today that a White House spokesperson stated, “The Proclamation allows for potential exemptions, which can include physicians and medical residents.” Still, “can” does not mean “will”. Academia and other industries may begin pushing for exemptions. Employers and foreign workers will need to monitor the situation closely.
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If you would like assistance with immigration planning in these uncertain times, please reach out to any member of the Varnum Immigration Team.
